We Need To Talk About Ginni

In this long-anticipated episode we finally get into The Ginni Problem. New Yorker chief Washington correspondent Jane Mayer joins us to talk cults, insurrection, and other super normal Supreme Court stuff.

A podcast where we dissect and analyze the Supreme Court cases that have undermined our democracy, like the CIA is undermining the Russian war effort

0:00:00.0 Elie: The problem is not that Ginni Thomas has a job, the problem is that Ginni Thomas is a crazy right-wing reactionary, who pins literal medals on people before they show up in Clarence Thomas's courtroom.

0:00:17.4 Leon: Hey, everyone, this is Leon from Fiasco and Prologue Projects. On this week's episode of 5-4, Peter, Rhiannon and kind of Michael are talking to journalist Jane Mayer about Ginni Thomas, the wife of Supreme Court Justice Clarence Thomas. Ginni Thomas has been active in right-wing politics for the entirety of Justice Thomas's tenure on the Court. Organizations that she works with have filed amicus briefs in cases before the Court, but Justice Thomas has always declined to recuse himself.

0:00:48.6 Leon: Mayer, who is The New Yorker's Chief Washington correspondent, told the hosts about Ginni's background as well as her shift towards more extreme beliefs and what can be done to manage conflicts of interest on the Court.

0:01:00.4 Leon: This is 5-4, a podcast about how much the Supreme Court sucks.

0:01:06.8 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have undermined our democracy like the CIA is undermining the Russian war effort. I'm Peter, I'm here with Rhiannon.

0:01:20.0 Rhiannon: Hey, Peter.

0:01:21.7 Peter: And Michael.

0:01:21.8 Michael: Hey, everybody.

0:01:22.1 Peter: As we publish this, the war in Ukraine is entering its second week or so. We haven't made a public statement about it because, as many of you know, Leon Neyfakh, our show runner, is Russian, born in the Soviet Union, and I don't... I haven't brought it up with him, I don't know which way he's going on this, and I don't want to rock the boat.

0:01:43.5 Michael: You know, my family on my dad's side goes back to Ukraine, that's where they emigrated from, through Ellis Island, which is why I don't know if I can continue on this podcast, if we... It's a real issue.

0:01:57.6 Rhiannon: Oh, my God.

0:02:00.4 Peter: No, that makes sense. And under the contract, your share goes to me, and we find another guy and move on. Before we get going here, we should do a little promo. We're doing a live show.

0:02:19.6 Rhiannon: That's right.

0:02:20.1 Peter: Oakland, California, April 2nd, The New Parish, we're doing a show.

0:02:24.8 Rhiannon: 5-4 live.

0:02:26.3 Peter: 5-4 live, baby. There are still tickets, I think we're close to selling out, so if you want some, go get some, you can get them at thenewparish.com, or you can find a link at fivefourpod.com, all spelled out. But hell, yeah, we're excited. We're pumped.

0:02:42.5 Michael: Yeah, it's gonna be so much fun.

0:02:45.4 Rhiannon: Can't wait.

0:02:45.5 Peter: Alright, today is a special episode. We are going to talk to New Yorker reporter Jane Mayer, who several weeks back published some reporting on the activities of Ginni Thomas, Clarence Thomas's wife. A few weeks later, the New York Times followed up with some reporting of their own, and the gist of all of it was that Ginni Thomas has been a political activist, let's say...

0:03:21.3 Rhiannon: Up to some shenanigans.

0:03:23.1 Peter: While Clarence Thomas is on the Court, and there are several instances in which her activism seems to be overlapping with cases before the Court, where she sort of has a stake, explicit or implicit, in Supreme Court cases. And just to give some color here, Ginni has always been somewhat politically active, she worked for the Heritage Foundation in the early '00s and late '90s...

0:03:53.2 Michael: Which was a big conservative think tank.

0:03:56.0 Peter: Right, big, heavy hitting conservative think tank. She ran her own advocacy group called Liberty Central in the late '00s, campaigned against the Ground Zero Mosque and Obamacare while the Obamacare case sat before the Supreme Court, Clarence Thomas did not recuse himself quite famously. Started a new group in 2012 or so called Groundswell, which pulled together various hard-line right-wingers. There was a focus initially on voter fraud while Clarence Thomas was deciding Shelby County.

0:04:31.2 Rhiannon: That's right.

0:04:32.1 Peter: And then Ginni gets sort of swept up in the Trump craze and just sort of generally goes off the deep end in the way that all Republicans did, and things have gotten a little bit weird. The reporting shows that she has close ties to groups that submitted amicus briefs in Trump v. Hawaii, the Muslim ban case. She and Clarence dined with President Trump shortly after the Kavanaugh battle. And in January 2019, Ginni and some members of her organization met with Trump in the White House, where she, further reporting brought up fears of the deep state transgender fascist agenda, that's a quote, I think, and general concerns about gay rights. The reporting from the New York Times said that it was hard to hear anything during the meeting because some of the members of her group were praying so loudly. All of this was so bad that Donald Trump called her, quote, a wacko.

0:05:35.4 Rhiannon: And I just want to highlight really quick how people might be thinking like, okay, she's the wife of a Supreme Court Justice, she's not the Supreme Court Justice, what do other spouses of Supreme Court Justices do? Shouldn't they be able to have their own jobs and have their own ideas and activism? And traditionally on the Supreme Court, spouses and even sometimes family members really take themselves out of politics in order for the Supreme Court Justice who they're related to, to be able to work adjudicating on cases in an impartial way, right?

0:06:12.8 Rhiannon: Jane Mayer, I heard her talk about, for instance, in another interview that she did, she talked about how Chief Justice John Roberts, his wife is an attorney, gave up her law practice once John Roberts was nominated to the Supreme Court. Ruth Bader Ginsburg, famously also married to an attorney, a very talented, very successful tax attorney, he gave up his law practice as well when RBG was nominated to the appellate court before she was even on the Supreme Court. And then current Justice, about to retire, Stephen Breyer has a brother who sits on a district court in California, I believe, any case that has gone through that district court or his brother has in any way kind of worked on, Justice Breyer, recuses himself from those cases, does not sit on those cases.

0:07:01.8 Rhiannon: So just want to highlight how different it is that the Thomases have set up their... Set up their little system like this and yeah, it certainly raises some red flags, which I was really, really, really excited to talk to Jane about.

0:07:17.5 Peter: Yeah. Obviously, the drama here is fostered by the question, what should Clarence Thomas do? What are his obligations in a situation like this, because frankly, under the law, there aren't that many. Supreme Court Justices sort of self-regulate on this stuff to a large degree. So we're sort of bouncing back and forth in these conversations between Clarence Thomas is unethical and Ginni Thomas is insane, and we're looking to find the perfect balance. But the reason that the New Yorker and the New York Times are involved in this is because there are real questions being raised about whether Clarence Thomas is handling this in an ethical manner.

0:08:00.5 Peter: One last thing to note before we hop into the interview, Michael's here right now, but his home was under heavy construction at the time, so you will not be hearing from Michael. Instead, he passed along some questions to us and we declined to ask them because we ran out of time. Sorry. Anyway, here is our interview with Jane Mayer.

0:08:21.5 Rhiannon: Jane Mayer, thank you so much for being with us. We are so excited to have you. As long-time, I would call us long-time Ginni Thomas watchers...

0:08:31.7 Jane Mayer: Sorry to hear it.

0:08:33.9 Rhiannon: We were thrilled to see your reporting and we're just really excited. So first off, what got you interested in researching Ginni Thomas?

0:08:43.6 Jane Mayer: Well, I think you probably know that my watching of Ginni Thomas also goes back quite a ways, and it's not just Ginni, but I wrote a book, I guess it came out in 1994, about Clarence Thomas and Anita Hill's showdown during his confirmation hearings, and Ginni was at his side throughout the whole confirmation hearing mess. And she was a character of interest even back then, and so there's some bits about her in that book, it's called Strange Justice, so I hate to think how long I've been paying attention to this couple, but they've had so much importance in the life of every American, whether they know it or not, that as a political reporter, it seems worth it to keep an eye on them.

0:09:25.3 Rhiannon: Yes, absolutely, and we want to get into the importance of this kind of reporting a little bit later. Just to start off for our listeners, we want to talk a little bit about Ginni Thomas' early years, early adult years, I should say, and maybe first of all, she was in a cult. What's up with that?

0:09:42.6 Jane Mayer: She was in a cult. Isn't that kind of amazing? Yeah, it was a cult called Life Spring, and this was during the period, I think, when she was having trouble passing the bar exam. She had gone to law school, and she was from Nebraska, and she was in Washington and working for a local congressman from Nebraska, and she somehow got sucked into this kind of self-esteem boosting cult, at least that's what it was supposed to be, but it required its participants to engage in ritual humiliation of various sorts. They would sort of confront each other in aggressive ways and even strip down... There's been debate about how far they would strip down, I don't think they got completely naked, I think they stripped down to their underwear and then sort of said humiliating things about each other's body fat and things like that.

0:10:35.0 Rhiannon: Jeez.

0:10:36.1 Peter: And this builds the self-esteem.

0:10:38.4 Rhiannon: Yeah, it sounds like the opposite of self-esteem building, but...

0:10:43.2 Jane Mayer: Tear it down to build it up.

0:10:43.2 Peter: Look, I don't want to pass judgment. If I had failed the bar, God knows what I would have done.


0:10:49.4 Jane Mayer: Well, so she... It was kind of an improbable start to a life as the wife of a Supreme Court Justice, I think you can say. She did get out of that cult with the help of deprogrammers, who themselves then became kind of major overwhelming presences in her life for a little while, according to people who knew her back then, and I think her roommates had to kind of bar the door first to the Life Spring people, and then later to the deprogrammers. I think what I take from that, I mean, I don't want to judge too harshly either, people have wobbly starts when they're young, and who are we to laugh at them, but I think that at the same time, I do think from having interviewed people who knew her back then, what they take from it is that she's someone who is vulnerable to basically being manipulated a bit and vulnerable to, I guess kind of extreme ideologies.

0:11:44.1 Rhiannon: Yeah, to say the least. You know, I'd love a little bit of background info in just how did Ginni Thomas first get involved in politics.

0:11:52.8 Jane Mayer: I mean, she was basically born into it, and that's the thing. Her family was kind of the mainstay of the support for Goldwater in Nebraska when he ran for president in 1964, and her mother was a huge supporter of very far right, almost sort of flaky characters on the far right. And one of the things that I came across was that Curt Anderson, who's a well-known journalist, turns out to have grown up across the street from the Lamp family, that was Ginni's maiden name, and his family were Goldwater supporters too, but he said even they regarded the Lamps as crazy. He sort of described them as the early stage of what's become crazy in the Republican Party, conspiracy theories and just kind of untethered from facts.

0:12:39.6 Rhiannon: Wow, and we know later on that even Donald Trump called her a wacko, so it seems like this is maybe a little bit of a theme throughout her life.

0:12:47.3 Jane Mayer: Yeah, and her mom also, interestingly, accused the Republican Women's Association of rigging elections, so there was even kind of the early whiff of thinking that when the right didn't win or when the right character didn't win, that it was a stolen deal.

0:13:03.8 Rhiannon: Oh, that's so interesting. So Jane, it seems from the reporting around Ginni Thomas around... From your reporting around Ginni Thomas that she got sort of markedly more active in politics over time. What was she doing, how was she acting early in Clarence Thomas's term?

0:13:21.1 Jane Mayer: Well, she was a lawyer for the Chamber of Commerce, I think when they first met, and her passion at the time was opposing what was called comparable worth for women, meaning equal pay for women, and so she was kind of a young woman who was opposed to what was then the burgeoning sort of feminist women's movement, and at the same time, he was a rising Black star who was standing in opposition to much of the sort of traditional civil rights movement that many Black Americans held dear, so they were both outside the mainstream movements in their own identity groups, and they struck a close relationship pretty fast.

0:14:00.2 Rhiannon: Right. And what is she up to as we move into the Trump era and during the Trump presidency? Again, it seems like her most sort of radicalized views, radicalized ideologies are from this time period.

0:14:14.4 Jane Mayer: Well, I would say there's sort of a straight line through her life from sort of Goldwater republicanism to her own deep involvement in the Tea Party movement, to her pro-Trump involvement. Actually, it's interesting, before endorsing Trump, she was actually a supporter of Ted Cruz in the 2016 election, but after Trump was elected, she kind of goes all-in. She's become just deeply enmeshed in the furthest right and most extreme reaches of the conservative movement in America.

0:14:45.3 Peter: So I want to talk a little more specifically about the potential conflicts that have arisen between Ginni's work and the cases before the Supreme Court. It seems from your reporting that organizations that Ginni is working closely with have fairly routinely submitted amicus briefs in major cases. Can you give us a little more color there, what do we know? How often has this happened?

0:15:08.4 Jane Mayer: A lot, I mean, and that is actually what I was writing then, and that is actually what prompted this particular piece was noticing it's not just that she's an activist, which is unusual for a Supreme Court spouse, it might raise eyebrows, but it would be just a kind of a judgment call. But where this gets really sticky is she's actually involved with groups and involved in issues that in many ways are coming before her husband's Court, where it begins to raise questions about whether he can sit impartially on cases in which she has such a sort of a vocal involvement.

0:15:47.6 Jane Mayer: And so to take just a small example of this, there is a major affirmative action case that's in front of the Court now. It involves the policies that Harvard University uses in its admissions, and when it tries to put a thumb on the scale to at least have a kind of diverse incoming class each year, which it considers to be of great value. In that case, there's an amicus brief that's been submitted opposing Harvard's affirmative action policies by an organization called the National Association of Scholars, and Ginni Thomas sits on that group's advisory board.

0:16:23.8 Jane Mayer: So there's an amicus brief from a group that she is actively involved in, and that brief is part of the bundle of information that is distributed to her husband, among the other Justices, so she's got a role in, you might argue an attenuated role, but she's got a role there.

0:16:41.7 Rhiannon: Yeah, that's wild.

0:16:42.9 Peter: And I think your reporting had mentioned a sort of similar situation in Trump v. Hawaii, the Muslim ban case.

0:16:49.5 Jane Mayer: Well, that one is in some ways even I think almost the most unsettling of the cases that I uncovered, because there there's money involved, which always makes things much more serious. And so in that case, in 2017, Ginni Thomas, who runs a consulting firm, sort of a tiny... I think it's probably a one-woman shop consulting firm in Washington, was hired by a group run by a hawkish conservative activist named Frank Gaffney. And at the same time, that Gaffney's group was paying Ginni Thomas's company what turned out to be about over $200,000 that year and next, in total, she was taking in several hundred thousand dollars, and Gaffney meanwhile was filing, with a couple other people, an amicus brief in a case involving Trump's policy having to do with the so-called Muslim ban. He was a huge advocate trying to bar Muslims from emigrating into United States.

0:17:47.4 Jane Mayer: And again, this is a case in front of Clarence Thomas, and somebody who has filed a brief in it is actually paying Clarence Thomas and his wife.

0:17:57.7 Rhiannon: It's unbelievable.

0:17:58.9 Peter: And I guess... You mentioned that there's an argument that her connection to these cases is attenuated, and I guess you can probably make the argument that to some degree, things like amicus briefs don't really matter, anyone can file one, and perhaps they're not very influential. But if you put that aside, you also mention her involvement in January 6th, because it goes beyond just the filing of amicus briefs, Ginni has ties to various parties who were involved in the January 6th shenanigans. And you point to Ali Alexander, this fringe right-wing guy who was a big organizer and had long-standing ties to her Groundswell network.

0:18:38.2 Peter: And of course, Justice Thomas has weighed in on January 6th subpoenas to Donald Trump as the only Justice who would have thrown them out. So from a conflict of interest perspective, this seems even more damning, perhaps, than the amicus briefs, because there's a degree to which Ginni herself might be implicated directly or indirectly here. So how much do we know about her involvement in the events leading to January 6th? What's the possible nexus here between her and all of the sort of surrounding litigation and investigations by the House?

0:19:08.2 Jane Mayer: It's pretty mind-boggling, and I don't think we know the whole story. But even what I was able to turn up, I think raises a lot of concerns. But I just want to, before we move on to that, I'm going to play the devil's advocate with you on the subject of whether amicus briefs matter or not, because I think that there's a changing mindset on that. And it sounds like you may be a lawyer, and I can tell you I most certainly, I'm not, but I interview a lot of lawyers, and I can say that at the appeals court level, there's actually a new rule that was passed in 2018 that enables judges to strike down amicus briefs from the record if they have a conflict of interest with the filer of the amicus brief.

0:19:52.1 Jane Mayer: And that I think was prompted by the growing feeling that amicus briefs are proliferating, to begin with. They really have become a major form of lobbying in Washington, where groups are lobbying the Supreme Court by filing these briefs. They're also a form of dark money spending, because often you really can't see who's funding the groups that are filing these amicus briefs, and they give the impression often that there's sort of an uprising of sentiment in some direction on a case because there are so many briefs, and if you really look carefully, sometimes there's really just one source of funding and activism behind a whole bunch of them. So they can give a kind of a misleading feeling to the Court, they give a mainstream legitimacy to very far-out issues and positions, because there's actually been some orchestration of them.

0:20:44.0 Jane Mayer: And for all those reasons, there's actually been much more interest recently in trying to do something to make amicus briefs more transparent, so that people can figure out where the funding is coming from, and that's a piece of legislation, actually, there's a proposal on it that's been put forward by Senator Sheldon Whitehouse of Rhode Island, who is very interested in a lot of legal issues. So I would say, also having interviewed some of the experts on amicus briefs, that there's been an explosion of them just in terms of numbers, there's been kind of an exponential increase beginning after World War II, but now there's almost never a case without some of them, and some cases, have just zillions of them. And I look through them and I can see it's all the same groups that I see being active in terms of sprinkling money into American politics now.

0:21:35.7 Peter: I agree with that, and I was playing a bit of devil's advocate myself about being dismissive of the briefs, but I think that maybe, even putting aside the fact of the briefs, they are sort of symbolic of the extent to which Ginni is financially tied up in the outcomes here to some degree.

0:21:52.0 Jane Mayer: Yeah, I was just thinking, if you want to find someone who is taking this issue seriously, take a look at Nina Pillard, who is a judge on the appeals court in the District of Columbia, the federal appeals court, and her husband is the legal director of the ACLU, David Cole, and she will not hear any case in which the ACLU has submitted even an amicus brief, let alone being a party to a case, and that's because she doesn't want there to be the appearance of conflict of interest. Often... I mean, as I'm sure you know, the issue is not so much as necessarily having to be a conflict, but it's also not wanting the public to think there's a conflict, not having the appearance of a conflict, because that undermines faith in the courts, and so she's been very careful about that, and I think that shows that sort of thinking about this is taking amicus briefs seriously.

0:22:48.4 Peter: Right. So let's circle back to January 6th. So what do we know... You mentioned we don't know everything, but what do we know about her role in organizing for January 6th?

0:22:58.1 Jane Mayer: Basically, what came to light first was that in the morning of January 6th, Ginni Thomas hosted on social media a couple of messages cheering on the protesters, who were claiming that Trump had been cheated of the election and that Biden had stolen it, and that was the Stop the Steal rallies that were taking place in Washington, and that was surprising in its own right. Then when those rallies resulted in some of their protesters actually ransacking Congress and breaking the laws in what looked like an insurrection, she went back on social media and tried to sort of walk it back a little bit, saying, pointing out that she had posted those comments before those protests had turned violent.

0:23:44.7 Jane Mayer: But the fact that a Supreme Court Justice's wife was even out there at all in this public way, vocalizing about taking the side of Trump's, what's been called his big lie, was eye-catching, and it was sort of the beginning of the public's awareness that she had some role there. And as you said, it turns out the role goes far deeper. One of the organizers, Ali Alexander, has been involved in a group that Ginni Thomas started, which is called Groundswell, going back to the beginning of the Tea Party movement, involving a lot of important right-wing figures in Washington.

0:24:23.2 Jane Mayer: She's also spoken at an event back during the Tea Party era with Stuart Rhodes, who is the founder of the Oath Keepers, which sort of places her in the very far edge of the kind of extreme conservative movement going back many years. And then one of the people who touts her consulting firm, it's called Liberty Consulting, and it was up on the website for Liberty Consulting, is a woman named Kimberly Fletcher, who also was an organizer of those January 6th rallies and a speaker at them. And there are a number of other connections too, you can just see that this is her social circle, this is her political crowd, and they were the ones that were quite involved in organizing January 6th.

0:25:12.6 Peter: There's sort of this weird throughline running, when you look at Clarence and Ginni, this sort of what looks, at first at least, like a tension between someone who is on the Supreme Court, representative of this sort of intellectual wing of the conservative movement, and then Ginni, who is buddying around with the right's most anti-intellectual strains, and I think this is what makes their marriage fascinating to people, what looks at least at a glance, like a tension. Do you have any big picture thoughts on that? I know that's a very general question, but I think that's what is, at least to me, so fascinating about this.

0:25:52.1 Jane Mayer: You know, as somebody who has covered Clarence Thomas since his early days on the Court and watched his rise actually onto the Court, I don't really observe him to have been a major intellectual. He's become quite a very prominent political force on the Court in terms of the way he thinks about his so-called originalism, but he wasn't a brilliant scholar when he was at Yale Law School. I was just talking to someone who was in his class who remembers him always watching football games in the lobby outside of the classes. I interviewed people who knew him, they didn't think of him as a tremendous intellectual as an undergraduate, so I don't think of either of them as particularly intellectual forces.

0:26:35.6 Jane Mayer: I think they are in some ways emotional, political forces. Both of them have a shared bitterness and a shared sense of grievance, and particularly after the confirmation hearings in which Clarence Thomas was credibly accused by Anita Hill of having sexually harassed her at the time that he was supposed to be running the Equal Employment Opportunity Commission. First of all, they've described it as going through a fiery furnace that welded them closer together, and I think if you really look carefully at the pronouncements from both Clarence Thomas and Ginni Thomas, they both have expressed a tremendous sense of sort of victimhood.

0:27:14.5 Peter: Right, that makes a lot of sense. So we've got all these instances of conflicts. You know, I was digging around, and you can see that she was working sort of indirectly for the Bush Administration or the soon-to be Bush Administration, while Bush v. Gore was before the Court when she was working for Heritage. She's sort of famously opposing Obamacare while the Obamacare case is before the Court and there's calls for Justice Thomas to recuse, which he does not do. Has he ever explained himself publicly on this, either to say why he didn't recuse in certain situations or to explain his philosophy about when recusal is proper, or has he just kept silent?

0:27:51.9 Jane Mayer: Well, I don't know of him having ever explained his policy towards this. He did, I think, sign on to a group kind of policy that several of the Justices agreed to with Justice Roberts, which said in essence that they would try to observe the same code of ethics that the lower courts do, and this was a number of years ago. So he has sort of paid lip service to that, and he has recused himself very, very rarely for family matters, but not for his wife. He recused himself from a case that involved a military school that his son was attending at the time.

0:28:31.1 Peter: Got it.

0:28:32.4 Rhiannon: Jane, you know, you alluded earlier to the lack of faith or an undermining of faith in the Supreme Court when there are so many monied interests involved in the cases, when it's the thesis of our podcast really that the Justices themselves are acting as political ideologues and not as objective adjudicators. Why does it matter if faith in the courts is undermined? The approval rating for the Supreme Court right now is very low. They keep going on, it seems that public opinion or a lack of faith in the institution does not really hold them accountable. Why does it matter then?

0:29:08.3 Jane Mayer: Well, I mean, think it's just so fundamental to the rule of law in the country, that citizens have a sense that justice will be done by the courts system. It's just one of the very most important foundations of the democracy, and so it's incalculably valuable and important that people trust the courts.

0:29:34.5 Rhiannon: I certainly agree, but...

0:29:37.5 Jane Mayer: I think Justice Thomas would say that what he's doing is not political. He has made speech is saying we are not just politicians in robes, and he has blamed the press for making it look that way. But I would say that he needs to look a little closer to home, because his wife's activism makes it very hard for people to think that he can really be impartial when he's listening to cases involving issues that she's directly involved in, and in some cases, groups that she's part of are filing briefs in.

0:30:13.1 Rhiannon: Absolutely, yes. So turning to maybe the lack of oversight mechanisms or institutional accountability methods, the Supreme Court, we know, is the only federal court that does not currently have to follow a code of ethics. The lower federal courts do have codes of ethics that they have to abide by, but as we've seen recently, even when lower court judges flagrantly violate ethical rules regarding, for example, hearing cases that implicate their own financial interests, there aren't really any consequences. So is there any hope of preventing these sorts of conflicts at the Supreme Court or in the federal judiciary more broadly?

0:30:50.5 Jane Mayer: I think so. I think that it's an issue that is increasingly troubling to many people in Congress and to the public, and basically what it will take is a popular push to try to reform these rules and maybe subject the Supreme Court itself to some kind of mechanism to police its ethics. I think it's long overdue, personally, watching this. I mean, to me, one of the most amazing things was not only did Ginni Thomas have as a client someone who wound up filing an amicus brief in front of her husband, and not only did she and her husband take in something like over $200,000 from that client, there's absolutely no sign of it, if you take a look at the filings of the Court, the financial disclosures, there's certainly ways that financial disclosure laws could be tightened, and should be.

0:31:42.4 Peter: In your mind, is there any specific legislation that is either proposed, pending, or that you would just generally like to see that you've actually seen being discussed in Washington?

0:31:54.0 Jane Mayer: Well, I mean, I think that some of the proposals that Senator Whitehouse has come up with about more transparency for amicus briefs, and proposals that involve some form of ethics code for the Supreme Court are long overdue.

0:32:09.5 Rhiannon: Right, Jane Mayer, thank you so much for your time.

0:32:13.4 Peter: We appreciate it.

0:32:14.7 Jane Mayer: Thanks so much for having me.

0:32:20.3 Peter: I think it is time for a quick break.

0:32:25.8 Michael: And we're back.

0:32:25.8 Rhiannon: You know what I found so interesting, which I wish I knew more about, is like even Ginni Thomas's mom was accusing people of voter fraud, the Republican Women Organization, it just seems like this is a family affair, right?

0:32:40.0 Peter: Right, yeah, it's genetic. When I hear about stuff like that, I think we always think the voter fraud line is this bad faith thing they're doing on purpose to rig elections, and sometimes I think maybe that's not quite it, maybe it's just like a manifestation of true narcissists, who cannot comprehend that they have lost something or that people would prefer something else. Because with Trump, it feels less like a conscious decision and more like his real inability or unwillingness to process that sort of thing.

0:33:16.9 Rhiannon: Like a pathology. Yeah.

0:33:18.5 Peter: One thing I want to mention before we sign off is, this is probably the first time I heard someone say Clarence Thomas isn't really an intellectual.

0:33:29.6 Rhiannon: Oh, my God, that was great.

0:33:32.1 Michael: Yeah.

0:33:32.1 Peter: And I think that's a really sharp point, and I hadn't really processed it like that before, that even the sort of people on the right who present as intellectuals are in fact anti-intellectual and not particularly intellectually curious. And I think that was something I don't think I've heard anywhere else.

0:33:48.9 Rhiannon: Yeah, she called them both emotional ideologues, I think, and I think that's just such an apt, perfect description.

0:33:55.3 Michael: Yeah, I thought that was one of the most interesting parts when I listened to the interview, and I have a few thoughts if you guys are ready to hear some constructive criticism.

0:34:04.0 Rhiannon: Oh, is that right? Please.


0:34:12.1 Michael: No, yeah, and that was actually the main thing I wanted to mention too was the thing about him watching football in law school in the public lounge or whatever, which tracks, actually. I've said in the past that I've found him to be a more persuasive writer than Scalia, and I think that's true, but I think part of that is the force of his writing is that it's very free of intellectual foofiness. It's like very plain language and very to the point, and so I think that makes him a strong writer, but I also think it kind of shows in his jurisprudence.

0:34:46.0 Peter: So I think the only remaining questions are like, can anything actually be done about this? I've got a piece coming out in Balls and Strikes, and I've been thinking about this, but to a degree, we're sort of hitting a wall on Court reform stuff, right. And the question becomes, well, can we do something either instead of it or something that would build political pressure over time that could lead to Court reform down the line. And I wonder whether the best bet, maybe for lack of other options, is transparency. It's something that you could probably pass in some form or another, because it's hard to oppose, and it could lead to things like this getting some light shined on them, especially with the more brazen right-wing Justices who like frankly, just don't really seem to care about ethics quite as much as some of their more moderate and liberal colleagues.

0:35:50.5 Peter: And I wonder whether there's a real path there, or at least whether it's worth pursuing, considering how much of a wall we seem to be running up against where you can't get fucking Manchin to vote for child care, you're not gonna get him to vote for up-ending the Supreme Court, but why not transparency? Why not more financial disclosure, why not a code of ethics? These are things that could be done, and could maybe expose some of these people for what they are to a broader segment of the public.

0:36:18.3 Michael: Yeah. You know, I have something I wanted to respond to Jane, but she's not here. It feels weird responding to a point she made in absence, but...

0:36:27.2 Rhiannon: You should do it.

0:36:28.9 Michael: One thing that I don't necessarily agree with was sort of like... Or necessarily agree with how she put it, but about the importance of the legitimacy of the Court. And I agree in the abstract with this idea that in a well-functioning society, it's important for the people to view the Court as legitimate and to accept its conclusions as legitimate, even when they're unpopular and blah, blah, blah. But I think the first order question is whether it substantively is legitimate, right? And I don't think this Court is, and sort of exposing that is maybe one step along the path of rehabilitating its image and rehabilitating it substantively. And so, yeah, I think the sort of disclosure and transparency laws could be an important step along the way.

0:37:17.4 Rhiannon: That's a sharp point, Michael.

0:37:19.7 Peter: Yeah, and I think it's safe to say we all disagree with Jane on the importance of maintaining the institutional legitimacy of the Court. There's a degree to which she's correct, we should aspire to an institution that is legitimate and as such an eye towards maintaining its legitimacy makes sense. But in its current form, I don't see why you would ever prioritize the maintenance of legitimacy. All that does is feed the fire and provide legitimacy to a reactionary institution.

0:37:52.0 Peter: Alright, well, next week we're gonna have Ginni Thomas on for a rebuttal.

0:38:00.4 Rhiannon: Imagine, imagine.

0:38:00.9 Peter: I would... If anyone out there... We've got a lot of listeners. If anyone out there knows Ginni Thomas, reach out, I want to talk to her. I'll be cool. It won't be mean. I just want to just hear her go for a bit.

0:38:17.7 Rhiannon: Yeah, just get her going.

0:38:19.7 Michael: Did she think they were selling child sex slaves in the basement of Comet Pizza? I want to know.

0:38:26.7 Peter: Right. I want to talk to her about QAnon. I want to talk to her about the Ground Zero Mosque. There's all sorts of shit where... I would just love to just wind her up and watch her go, and if one of our listeners can bring us that, that would be phenomenal. Anyway, that's it.

0:38:49.2 Peter: Next week, special premium episode on the civil rights cases, cases from 1883 that held that the 13th and 14th Amendments did not apply to discrimination by private individuals, really dampening the impact of Reconstruction and greasing the wheels for the rise of the Jim Crow South.

0:39:12.8 Peter: Follow us on Twitter @fivefourpod, subscribe to our Patreon at patreon.com/fivefourpod, all spelled out, for ad-free episodes, bonus premium episodes, access to our Slack, special events, all sorts of shit. We'll see you next week.

0:39:30.3 Michael: Bye.

0:39:31.9 Michael: 5-4 is presented by Prologue Projects. This episode was produced by Rachel Ward with editorial support from Leon Neyfakh and Andrew Parsons. Our production manager is Percia Verlin. Our artwork is by Teddy Blanks at CHIPS NY, and our theme song is by Spatial Relations.