Wife of Supreme Court Justice Clarence Thomas signs letter against Jan. 6 committee

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It has been less than a week since 11 Oath Keepers were arrested with seditious conspiracy, but the spouse of Justice Clarence Thomas believes that they “have done nothing wrong.”

Bulwark’s Charlie Sykes pointed to a letter signed by Ginni Thomas along with many other fringe conservatives like the Family Research Council, the chair of the Tea Party Patriots Fund and the president of the Club for Growth. The letter speaks out against Rep. Liz Cheney (R-WY) and Adam Kinzinger (R-IL), who serve on the Jan. 6 committee which bothers Republicans who believe the GOP should be unified in protecting those who participated in a “coup,” as three retired U.S. Army generals characterized it.

“The actions of Reps. Cheney and Kinzinger on behalf of House Democrats have given supposedly bipartisan justification to an overtly partisan political persecution that brings disrespect to our country’s rule of law, legal harassment to private citizens who have done nothing wrong, and which demeans the standing of the House,” the letter Thomas signed says.

It adds to questions about Mrs. Thomas that surfaced after the attack at the U.S. Capitol. On Jan. 6, she was supporting the violence as it unfolded on her social media. When screen captures were being circulated, she promptly deleted her Facebook account, as Law and Crime observed at the time.

Mrs. Thomas has a “long history of incendiary rhetoric, particularly online,” CNN.com reported in a report about “rankled” former clerks of Judge Thomas.

It prompted progressives to ask the Jan. 6 Committee to call Thomas to answer questions about whether she helped fund any of the operations through her Republican organization Groundswell. Others said that Thomas should be recused from any cases that ultimately involve Jan. 6 as a result.

“Even worse, however, is the fact that no matter how far his wife takes her antics, Justice Thomas will likely not face any real repercussions for it,” CNN noted in their expose of Mrs. Thomas. “Under federal law, justices must recuse themselves from cases in which their ‘impartiality might reasonably be questioned,’ or where their spouse has ‘an interest that could be substantially affected by the outcome.’ However, such recusals almost never happen on the Supreme Court. The reality is that while Congress can impeach justices for egregious conduct – a step not taken since 1805 – there is no real mechanism for enforcing ethical rules against them.”

SCOTUS Rules 8-1 to Overturn Conviction of Child Killer, Only Justice Thomas Dissents

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The Supreme Court of the United States ruled 8-1 to overturn the conviction of Darrell Hemphill, who was convicted of the 2006 fatal shooting of 2-year-old David Pacheco Jr. Justice Sonia Sotomayor penned the majority ruling, holding that Hemphill’s Sixth Amendment rights had been violated when prosecutors introduced statements made by a different man during a plea deal; Justice Clarence Thomas was the lone dissenter.

Pacheco had been sitting in a minivan when he was killed by a stray bullet during a street fight in the Bronx. Eyewitness accounts of the shooting led police to a nearby apartment where they found matching bullets and the blue sweater the shooter had been seen wearing. Three individuals were ultimately identified as having been involved with the shooting: Ronnell Gilliam, Nicholas Morris, and Darrell Hemphill.

Morris entered into a plea deal for the shooting, then recanted, saying Hemphill had really been the shooter. Morris later pleaded guilty to gun possession charges in connection with the same incident. Years later, DNA evidence matched Hemphill and the blue sweater, and Hemphill was then indicted for the murder.

At Hemphill’s trial, he blamed Morris for the shooting. Hemphill’s lawyer noted that officers had recovered 9mm ammunition from Morris’ nightstand hours after a 9mm bullet killed Pacheco. Moreover, a prosecution witness gave evidence that implicated Morris as the shooter, though Morris himself did not testify.

In an effort to put context to Hemphill’s defense, prosecutors introduced parts of the transcript of Morris’ plea allocution to the gun possession charge as evidence to rebut Hemphill’s defense. Hemphill’s counsel objected on the grounds that allowing the plea allocution violated Hemphill’s rights under the confrontation clause, as Morris was unavailable for cross-examination.

The trial judge ruled that that Hemphill’s case had “opened the door” to allow Morris’ plea allocution is as evidence that was “reasonably necessary” to “correct” the “misleading impression” created by Hemphill’s defense case. Hemphill was convicted and sentence to 25 to life in prison.

Both the New York state intermediary and highest appellate courts affirmed, but SCOTUS reversed. Justice Sotomayor penned the 14-page opinion for the majority, holding that the trial judge had been wrong to allow one-sided evidence simply to put Hemphill’s defense in context. She wrote:

For Confrontation Clause purposes, it was not for the judge to determine whether Hemphill’s theory that Morris was the shooter was unreliable, incredible, or otherwise misleading in light of the State’s proffered, unconfronted plea evidence. Nor, under the Clause, was it the judge’s role to decide that this evidence was reasonably necessary to correct that misleading impression. Such inquiries are antithetical to the Confrontation Clause.

Justice Samuel Alito, joined by Justice Brett Kavanaugh wrote a brief concurrence, which focused on the idea that a criminal defendant such as Hemphill might, in some contexts, waive their rights under the Confrontation Clause. Although a defendant could impliedly waive their rights by “engag[ing] in a course of conduct that is incompatible with a demand to confront adverse witnesses,” they wrote, Hemphill had not done so.

Alito wrote that while “evidence that is misleading as to the real facts does not, in itself, indicate a decision regarding whether any given declarant should be subjected to cross-examination,” there are still “other circumstances” under which a defendant’s choice to introduce certain evidence could be considered a waiver of the right to confront.

In a 10-page dissent, Justice Clarence Thomas broke with the Court by focusing on the procedure underlying Hemphill’s appeal. Because Hemphill failed to raise his Sixth Amendment claim before the New York Court of Appeals (New York’s highest court), Thomas opined that federal courts have no jurisdiction over the issue under 28 U. S. C. §1257.

Thomas, however, noted that the Court has not been particularly faithful to this rule of late, writing, “our cases have since departed from this principle without squaring that departure with §1257’s unqualified text.” Remarking that, “For nearly 200 years, this Court adhered to the proper presentation requirement as a jurisdictional rule,” and had “routinely dismissed cases for lack of jurisdiction when the petitioner failed to properly present his federal claim to the state court.” Thomas called the Court’s change of course “a grave matter.”

[image via Erin Schaff/POOL/AFP via Getty Images]

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Justice Thomas Lee, once on Trump’s short list, is retiring from Utah Supreme Court

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(Rick Egan | The Salt Lake Tribune) Associate Chief Justice Thomas Lee makes a comment during oral arguments in the Utah Supreme Court on Friday, Sept. 16, 2016. Lee announced his retirement on Thursday, Jan. 20, 2022.

Thomas Lee is retiring as an associate chief justice on the Utah Supreme Court after 12 years, the state court system announced Thursday.

Lee, the brother of Sen. Mike Lee, R-Utah, announced his retirement in a letter sent to Gov. Spencer Cox on Wednesday. Thomas Lee plans to step down from his post on July 31, he said in the letter.

“It has been an honor to serve the people of the state of Utah as a member of the Supreme Court,” Lee wrote. “For 12 years, I have been privileged to work with an impressive group of committed, principled colleagues on this court and throughout the judiciary.

“I have decided that the time has come for me to pursue other opportunities in the legal profession.”

Lee was appointed to the Utah Supreme Court by former Gov. Gary Herbert in 2010. He received a bachelor’s in economics from Brigham Young University and his law degree with high honors from the University of Chicago.

“Associate Chief Justice Lee is an extraordinary jurist and scholar,” said Chief Justice Matthew B. Durrant. “I don’t think a single opinion has been issued in a case in which he participated that was not improved by his scholarship. … His work has been brilliant and his commitment to the rule of law unparalleled.”

Before his appointment to the bench, Lee was a full-time law professor at Brigham Young University, according to his biography on Harvard Law School’s website. He was also a clerk to U.S. Supreme Court Justice Clarence Thomas.

In 2018 and 2020, both Thomas and Mike Lee were on former President Donald Trump’s short list of possible U.S. Supreme Court nominees. Instead, Trump appointed Brett Kavanaugh in 2018 and Amy Coney Barrett in 2020.

Lee is the second Utah Supreme Court justice to leave the bench in recent months. Deno Himonas retired in October, which means Cox has two vacancies to fill for Utah’s highest court.

There is a new champion in the ‘what if the left did it’ competition

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Perhaps that is not still the case. Perhaps the Thomases have implemented some sort of firewall between her activism and his litigating. If that’s so, it’s porous. Mayer delineates a number of occasions on which Ginni Thomas has been linked to groups that are weighing in on decisions before the court and puts Clarence Thomas at politically centered events run by his wife. In late 2017, for example, he reportedly attended a ceremony — held at Donald Trump’s D.C. hotel, naturally — in which his wife’s organization presented an award to the far-right activist Frank Gaffney. Gaffney’s organization was paying Ginni Thomas at the time, Mayer reports, even as a case for which his group had filed an amicus brief was under consideration by the Supreme Court.

What’s with the Clarence Thomas’s dissent?

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I was admittedly relieved to read the news last night that the Supreme Court denied Donald Trump’s bid to block the sharing of his documents to the January 6 Committee. Truth be told, I expected that outcome – but it was nonetheless a relief to receive that news, given the right wing partisan tilt of that court for the past few years. (I still can’t wrap my mind around why Ruth Bader Ginsburg refused an easy retirement to the Virgin Islands a decade ago, but I digress.)

However, after a couple of minutes of enjoying a mild sense of jubilation, I read that the decision was not unanimous. In a dissenting opinion, Clarence Thomas voted to block the release of Trump’s documents related to the January 6 Insurrection. That is to say, in the view of Clarence Thomas, shielding elected officials from the crimes of subverting elections and overthrowing governments is more important than shedding light on the words and actions that civil servants use to carry out their jobs.

I am well aware of the fact that many Supreme Court decisions are split decisions. These court cases are usually highly controversial and politically charged. In short, they are debatable.

However, some court cases are unanimous. They are the proverbial judicial slam dunks. Court cases like Brown v. Board of Education (outlawing segregation, 1954), Gideon v. Wainwright (guaranteeing the right to an attorney in 1963), and Hustler Magazine v. Falwell (granting people the right to make fun at Jerry Falwell in 1988) are excellent examples of such unanimous decisions.

Chief Justice Roberts went as far to say that “Trump’s claim would have failed even if he were the incumbent.” That is a very powerful statement. I have a nagging suspicion that if Bill Clinton had committed the very same crimes as Donald Trump, it would be highly unlikely that Justice Thomas would have ruled in the same manner if Bill Clinton had made a request under similar circumstances.

The current January 6 Committee Supreme Court case, aka Trump v. Thompson (1/19/2022), will be reviewed and reflected upon as an important historical decision. Legal experts will undoubtedly look upon Trump v. Thompson favorably as a landmark decision that delineates the limits of executive privilege. History will not be as favorable to Clarence Thomas’s view. Nor should it be.