Author: Sara J

Clarence Thomas has long been a controversial figure since his public emergence. When Anita Hill accused Thomas of sexual harassment during his confirmation hearings in 1991 all the way up to his recent judicial rulings, the Thomas name has lived in infamy, to say the least. His strict originalist interpretation of the Constitution has largely served to benefit conservative politicians, raising objections regarding his adherence to judicial code of conduct—particularly considering his wife’s rampant conservative activism. In the light of the January 6th capitol insurrection and consequent litigation involving Thomas, his rulings regarding past & present contested elections take on a new context.

Contested Election, Contested Decision

One of Thomas’ initial controversies, the Bush v. Gore decision set a landmark precedent regarding the court’s role in mediating the contested election. The election between George W. Bush and Al Gore came down to a close vote as the media was divided on who would win. The results were thrown into contestation when news of Florida’s ballot results narrowed the margin of victory for Gore. As a result, the votes were recounted under state law and continued to be contested as suspect due to the varying means of how the recount was conducted (by hand, machine, etc) and how voter intent was discerned. In addition, there were sources of potential conflicts of interest for both Gore and Bush; Jeb Bush, Bush’s brother, was the governor of Florida and Katherine Harris was a Bush campaigner and Florida’s Secretary of State while Gore campaign head Bob Butterworth was Florida’s attorney general. When brought to the Florida Supreme Court by Gore, they decided to allow manual recounts of votes in select Florida counties. The Bush campaign objected to this decision and took the case to the Federal Supreme Court who ruled that Florida court’s decision violated the equal protection clause in the Fourteenth Amendment (7-2) and that votes were no longer allowed to be recounted (5-4).

Thomas faced criticism, along with his other majority peers, against his definitive decision against the Florida courts. Among the dominating critiques of legislative misinterpretation by dissenting opinions laid a subtler, potentially less pervasive critique: conflict of interest. Thomas’ wife, Virginia (Ginni) L. Thomas was a member of the staunchly conservative Heritage Foundation that worked to aid the (incoming) Bush administration. In the Heritage Foundation, she worked to vet potential staff and cabinet appointments. Before the trial began, Thomas had been called to recuse himself due to his wife’s close ties to the Republican Party, specifically Bush, claiming a violation of 28 U.S. Code § 455. A section of the code reads as such:

(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;

(5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:

(i) Is a party to the proceeding, or an officer, director, or trustee of a party;

(ii) Is acting as a lawyer in the proceeding;

(iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;

(iv) Is to the judge’s knowledge likely to be a material witness in the proceeding.

Thomas, obviously, did not recuse himself; at the time, the accusation had enough plausible deniability to not be considered a legitimate concern, despite Ginni Thomas’ position as the Director of Executive Branch Relations in the Heritage Foundation and the foundation’s connection to Bush.

My Wife is an Insurrectionist?

While the Bush admin connections were shaky, Ginni Thomas’ connection to the January 6th capitol riot was not. Upon learning of Joe Biden’s election win, she sent a string of messages to Mark Meadows, Donald Trump’s Chief of Staff, urging him to stop the steal, one of which being:

“Help This Great President stand firm, Mark!!!…You are the leader, with him, who is standing for America’s constitutional governance at the precipice. The majority knows Biden and the Left is attempting the greatest Heist of our History.”

The texts clearly indicate her engagement in stolen election conspiracy and her desire to incite some type of restorative action in response. She claimed the text correspondence was the result of an emotional reaction post-election and that her presence at the capitol on January 6th ended before the riots when pressed by the January 6th election committee. Regardless of her “intent,” its hard to claim her actions don’t violate the 28 U.S. Code § 455 with her connection to Trump’s staffers. Her insurrectionary actions make Thomas’ non-recusal all the more incriminating in the Trump v. United States presidential immunity decision and aids in the public’s increasing Supreme Court distrust. Moreover, Trump’s appointment of three originalist justices to the Supreme Court, all with similar controversies, continue to question the legitimacy of the court when ideological diversity is slowly dissipated and allegiance to Trump is given precedence—if the majority conservative judges act as a faction, who will hold the others accountable?

Sources

CBS San Francisco (December 30, 2022): Ginni Thomas tells Jan.6 committee she regrets texting with Meadows about 2020 election

Claudia Grisales (September 30, 2022): Supreme Court Justice Thomas’ wife Ginni has a long history of conservative activism

Bob Woodward and Robert Costa (March 24, 2022): Virginia Thomas urged White House chief to pursue unrelenting efforts to overturn the 2020 election, texts show

E.J Dionne and William Kristol (pp. 97-143, 2001): Bush v. Gore: The Court Cases and the Commentary

Throughout election history, corruption has functioned as a fear mongering tool that uses justice (imagined or realized) as a bargaining chip. However, it is impossible to ignore the hypocritical nature of most corruption accusations, which set a strange precedent regarding “acceptable” corruption and raises questions about the broader implications of corruption.

Weaponizing Corruption

The election of 1876 saw how Republicans and Democrats used actualized corruption as leverage in bargaining with each other. Southern states had recently re-joined the union, albeit reluctantly, post-Civil War. In the wake of the battle between the Republican Rutherford B. Hayes and Democrat Samuel J. Tilden, Republicans contested the vote count, leading Democrats to decry corruption.

Up to and during the election, Democrats in the South targeted the remaining Republican-controlled Southern states—South Carolina, Florida, and Louisiana—using intimidation towards voters and their state government to relinquish control. South Carolina Democrats organized and deployed armies to declare war on Reconstruction, blatantly using militaristic violence against Southern black voters (such as in the Hamburg Riot) to influence the election of state and federal officials. During the election, they used flagrant voter-fraud tactics like simply throwing ballot boxes out or violent voter intimidation.

In response to corruption allegations, Republicans devised a compromise and created a seemingly bipartisan election ratification committee. By strategizing with filibustering, Democrats attempted to build power & rapport in the contested states and drag out the election. However, the prolongation of the hearings worked against them when Republicans certified election results through a newly appointed Republican member of the committee, swinging the votes in Hayes’ favor. The Democrats may have lost the election, but their protest against corruption combined with Hayes’ anxiety around reunification allowed the South to gain a hand in negotiating Reconstruction. As a result, Hayes withdrew Union troops in the South and stopped Reconstruction efforts, expecting Democrats to create and enforce laws to protect Black Southern voters, which they in fact, did not.

Revenge Against the Rule of Law

On the surface, it appears that one would require great mental disconnect to engage in such hypocritical behavior. But what if the Democrats weren’t adhering to the same rule of law as the Republicans? From the beginning, they had undermined the Constitution in their attempts to thwart Black voting and civil rights. They operated on their own terms post-secession, reinforced by 1) the loss of the Civil War and 2) Republican corruption (intervention) that threatened white Southerners’ economic, social, and political control if Black voters gained power. In that warped sense, if the election, and by extension government, were deemed corrupt, why should they be taken seriously?

In 2023, a legitimacy crisis regarding the judicial system gained prominence from President Joe Biden’s son, Hunter Biden, and his infamous trial(s). Details about his alcohol and drug-fueled escapades, possession of firearms, tax evasion, and questionable foreign collaboration were brought to light and subsequently used to attack Joe Biden’s character. Public eye shifted the spotlight to Trump as his faction chastised Hunter Biden for offenses Trump had committed several times over. Trump’s connection to tax evasion and civil fraud, controversial Trump family foreign profits, and numerous (alleged) sex-crimes should have compromised Trump as much, if not more, than Hunter Biden—but they didn’t. Instead, Republicans (including Trump) claimed that the courts were “unfair” and partial to Democrats, rendering their deliberation and judgement illegitimate to Republicans. By eroding trust in the judicial system and casting them as a corrupt institution, Republicans created a justification that, in good conscience, allows them to disregard all accusations directed at Trump from Hunter Biden’s trial to the present-day Trump indictments. The implications of said self-imposed legitimacy are grim in the face of a tense political climate where many of America’s foundational principles are at risk and executive power seems to have no bounds. If the judicial system is able to be so loosely adhered to at convenience, who’s to say what else that logical framework applies to? As U.S. Attorney General Merrick Garland puts it,

“The Justice Department will continue to uphold its obligation under the Constitution to fiercely defend the right of all Americans to peacefully express opinions, beliefs and ideas. Disagreements about politics are good for our democracy. They are normal.

But using conspiracy theories, falsehoods, violence and threats of violence to affect political outcomes is not normal. The short-term political benefits of those tactics will never make up for the long-term cost to our country.

Continued unfounded attacks against the Justice Department’s employees are dangerous for people’s safety. They are dangerous for our democracy. This must stop.”

Sources

David Jackson & Inge Amundsen (March 29, 2022): The flipside of corruption: when anti-corruption becomes politicised

Ella Lee (June 13, 2024): Trump, Hunter Biden convictions lead to starkly different political narratives

Jonathan Allen (June 11, 2024): Hunter Biden’s guilty verdict upends a top Trump talking point

Kate Côté Gillin, Shrill Hurrahs: Women, Gender, and Racial Violence in South Carolina, 1865-1900, Chapter 4 (2013): Sin and Redemption: The Election of 1876

Merrick Garland (June 11, 2024): Merrick Garland: Unfounded attacks on the Justice Department must end

Michael A. Ross, The Presidents and the Constitution: A Living History, Chapter 19 (2016): Rutherford B. Hayes

Peter Stone (June 11, 2024): Claims of rigged system by convict Trump and allies ‘threaten rule of law’

Sheilla Blackford: Disputed Election of 1876 | Miller Center

The polarization of political parties has seemingly transformed U.S. politics into a binary of subjective lesser evils. You see this manifested in catchphrases such as, “Vote Blue No Matter Who,” which serve to reinforce this fear-based electoral tactic. Polarization-focused voting schemes have been largely criticized in the past years alone, but their history provides an important lens for analyzing how party disunity affects electoral trends and creates repercussions varying from widespread dissent to acts of treason.

Ye Olde Disagreements and Divide

In the election of 1860, Republicans faced a crisis as party fractures occurred around the issue of slavery. The RNC candidate, Abraham Lincoln, campaigned on ending the emigration of enslaved people, which caused him to face immense backlash from the Democratic party. The issue became warped through a large game of newspaper telephone, ultimately framing Republicans as a pro-abolitionist party. This perceived threat against the commercial backbone of the South caused Democrats to fracture into several groups with varying viewpoints surrounding the institution of slavery.

The Democratic party, headed by Stephen A. Douglas, maintained their position against Lincoln but were seen by their constituents as insufficiently committed to the pro-slavery cause. As a result, groups such as the Southern Democratic Party popped up with campaigns driven by the preservation of slavery. Other groups, like the Constitutional Union, had similar opinions to the Southern Democrats but differed based on opinions surrounding secession.

While the Democrats quibbled in a corner over partisan issues, Republicans organized and mobilized to garner voters for the election. Republicans used every campaign method possible; they brought out notable speakers to sway opinion, published endorsements throughout Northern states, targeted and translated speeches to German immigrant voters, and utilized grass-roots organizations—such as the Wide Awakes—to target young voters. In contrast, Democrats pushed the easily disproved Republican abolitionism lie, yet did not make nearly the same effort to organize voters throughout their various party offshoots. Republicans’ unity against the Democrats allowed them to successfully gain enough electoral support from the split faction votes of Southern states. As a result, immense resentment burst from the Democrat-aligned parties, and, feeling unfoundedly threatened by the dissolution of slavery, some states decided to break from the union in opposition. Secession, the first step in protest against Lincoln’s election, underpinned the escalation that soon caused the Civil War.

Building Dissent Through Absurdity

Lincoln’s battle against the Democratic-aligned parties resonates closely with many recent elections, even down to the same campaign issues stemming from white supremacy.  Perhaps the most poignant example of unintentional disunity is the 2016 election, which saw an ideological divide spanning over Democratic socialist Bernie Sanders, Democrat Hilary Clinton, and various other third parties (i.e. Jill Stein, Gary Johnson, etc). As Sanders increasingly voiced his criticisms of Clinton’s policies—amplified greatly by the media—she responded by acquiescing to herd over potential Dem voters in Sanders’ base. Her email controversy served as the pallbearer, cementing the divides across partisan lines. On the other hand, Republicans, less divided than Dems, doubled down on supporting Trump and were resolved to campaign a solid and unchanging message to target evangelicals, their core voter base, along with coordinating various behind-the-scenes deals regarding Supreme court nominations,  reminiscent of a “corrupt bargain.” Intentional or not, Democrat disunity combined with Republican scheming and campaigning hurt Clinton’s voter base enough that she lost the electoral vote by a record-breaking 5 faithless electors.

Clinton’s loss is regarded as the catalyst for Trump’s, along with the larger conservative hive’s, ascension to power. However, eight years later, Trump’s popularity is not nearly the same level as it was during his inauguration. Inundated and shrouded in back-to-back scandals, the officials and the public alike have grown tired of Trump’s antics, ironically, with the same party dis-junction he exploited in 2016 coming back to bite him. His relentless attacks aimed at deposing fellow Republicans have jaded party members, and his insistence on spewing outrageous soundbites has greatly diminished his public credibility. It is in this environment that Kamala Harris’ united front of Democratic voters and organizations poses a large threat to the disillusioned and fractured Republicans.

In response to actualized and potential election losses, there are clear, direct parallels regarding Trump supporters who call for secession or preparation for an imaginary civil war, along with more sinister allusions towards a complete revolution. The consequences of another Trump loss have an unsettling unpredictability; his previous loss incited treason, which only strengthened his most radical counterparts. There’s no telling what the next course of action is for a group that has no issue committing blatant seditious acts against the United States.

Sources

Charles Homans, (November 10, 2022): The Right Wing Grassroots Scored Big in 2010. But 2022 Was Far Different.

Frank Newport, (July 17, 2020): What We Learned from the People in the 2016 Election

William A. Galston, (January 20, 2023): The polarization paradox:  Elected officials and voters have shifted in opposite directions 

Hannah Fingerhut, (November 2, 2016): How Republicans see the GOP on the eve of the 2016 election

Adam I. P. Smith, Chapter 3, (2015): America at the Ballot Box: Elections and Political History

Defamatory statements, intentional disinformation, and their presence in campaign strategies are not new, nor are they a thing of the past. Instead, they have always existed, surviving by adapting to the current political climate. Throughout elections, the popularity of misinformation and sensational stories serve to show manifestations of some greater collective political anxiety.

Slander, Slander, and More Slander

In the election of 1800, newspaper articles dictated the outcome of Thomas Jefferson and Aaron Burr’s battle to become president. When Burr and Jefferson tied in the election, anti-Burr proponents were quick to issue a narrative damaging Burr’s character as the tie-breaking vote was delegated to the House of Representatives. The smear campaign garnered enough fear surrounding the stability of the U.S. under Burr and ended up dissuading the Federalist-controlled House of Representatives from electing him on the 36th round of voting. It didn’t help that throughout the ongoing scandal, enforcement of libel/slander laws concerning inter-party quarrels or attacks from opponent parties was lacking. It left Burr with little legal recourse to combat attacks on his character and ultimately lead to his complete public defacement upon accusations of treason in Burr v. United States (among other things). With bi-partisan support, Burr was ousted from U.S. politics.

A Coordinated Sensationalist Attack

In a similar vein, the contested election of 1824 between Andrew Jackson and John Quincy Adams provides a look at strategized misinformation and its utility in altering the political climate in the long run. With an additional audience of newly enfranchised white male voters, candidates now had to expand their campaign to include common men, along with aristocrats, to secure votes. In this climate, Jackson rose to prominence with his political promises and rhetoric that pandered to the growing number of recently enfranchised white men. Newspapers published headlines remarking about Jackson’s character, likening him to the average joe in an attempt to appear more relatable than Adams (a child of nepotism). When Jackson lost the election in 1824, he spread the conspiracy of a “corrupt bargain,” and easily turned it into sensationalized news. His insistence on corruption occurring between Adams and then-speaker of the House Henry Clay (also an 1824 presidential candidate) to elect Adams as president instead of Jackson served as the foundation for his election in 1828. As more white men were able to vote without property requirements, they increasingly wanted their interests to be fairly represented; Jackson’s positioning as an underdog victimized by corruption fulfilled that criteria. In the end, he set a strong precedent regarding effective methods to wield the media as a weapon.

Sensationalism, Misinformation, and Terrorism

Today, the utilization of the media as a political tool to manipulate public opinion remains steadfast. Nevertheless, the advent of various options for media consumption (TVs, electronic devices, newspapers, etc.) along with the internet itself has added layers of nuance to political messaging.

From his initial inauguration in 2016 to now, Donald Trump has rarely avoided controversy. However, it is clear that over the last few years, he, along with his other political allies, have upped the rhetorical ante dramatically. His recent debate against Kamala Harris provides a litany of misinformation, sensationalist clickbait-esque soundbites, and straight-up lies. In particular, his comment about Kamala Harris, saying “…she wants to do transgender operations on illegal aliens that are in prison” quickly became viral due to its wildly unsubstantiated nature. As a means of gaining control, Trump commonly defaults to fear-mongering and creating political boogeymen as a tactic to incite outrage toward his opponents in an attempt to dampen their message.

Amplified greatly by uninhibited access to social media and news channels, Trump’s intentional spread of misinformation frequently incited terroristic actions (stochastic terrorism) that mobilized his fan-base at whim. By using his supporters as lackeys, he built a de-localized group of policy enforcers who took it upon themselves to threaten the lives of adversaries in a relationship not so dissimilar to a king and knight squadron. Examples of Trump’s incitement include his repeated insistence on labeling COVID-19 as the “Chinese virus,” which led to a notable uptick in hate crimes against Asian Americans during 2021-2022, his comments about shooting protestors demonstrating in Minneapolis (causing them to be targeted/antagonized), and the infamous January 6th insurrection as a result of his election fraud claim. In addition, he set a precedent for militaristic action in response to the practice of free speech (regarding opposition to his policies/protesting) using misinformation as justification. His large-scale use of threats and violence against criticism created a hostile political environment where backlash and unrest continue to propagate to this day. Trump’s success of misinformation-backed crusading emboldens his supporters while simultaneously increasing growing public concern over the bounds of executive power.

Sources

Mike Levine (May 30, 2020): ‘No Blame?’ ABC News finds 54 cases invoking ‘Trump’ in connection with violence, threats, alleged assaults.

Libby Cathey & Meghan Keneally (May 30, 2020): A look back at Trump comments perceived by some as inciting violence

Khadijah Costley White (January 19, 2021): How Trump Shaped the Media

Carey Wallace (April 14, 2016): Forget Hamilton, Burr Is the Real Hero

William Nester (2013): The Corrupt Bargain, Chapter 6

Reeve Huston (2011): The Expansion of Democracy during the Jacksonian Era