Judges and Authoritarianism
By Thom Hartmann for the Independent Media Institute
First, the backstories, one from 1803 and the other from 1968.
There’s always been an authoritarian streak in American politics: with studies showing about 20 percent of the population are “authoritarian followers,” it shouldn’t be a surprise that authoritarians would rise to political power and could even take over an entire political party through the force of will and wealth.
That’s
the story of authoritarian followers Clarence Thomas and his wife, Ginni, who
openly supported not just Trump’s authoritarianism but also his attempt to
overthrow the government of the United States. Thomas was the lone vote
on the Supreme Court in favor of Trump being able to conceal records from the
January 6th Committee. 
Liar
Thomas committed that flagrant violation of judicial ethics and unwillingness to recuse himself even after his wife, Ginni, actively worked to overturn the election, even going so far as to reach out to legislators in Arizona and Wisconsin (the ones we know about) encouraging them to ignore their states’ voters and award the Electoral College vote to Donald Trump.
But Thomas’ authoritarian streak isn’t limited to sucking up to Donald Trump. For decades he’s been taking tens of millions of dollars’ worth of gifts from a Texas billionaire who’s a major funder of Republican politicians and Nazi memorabilia collector, gave Ginni Thomas’ organization a half-million dollars to start her own rightwing advocacy group, and has supported sleazy organizations trying to pack the federal judiciary.
The last time an authoritarian toady on the Supreme Court was held to account was in 1803, and the analogies to today are startling.
While John Adams, our nation’s second president, wasn’t wealthy himself, he was a big fan of the rich and powerful, and the pomp and ceremony associated with money and power.
When
his carriage drove through towns between his home in Massachusetts and the
seats of government in New York and Washington, DC, he ordered each
town’s militia into the streets to celebrate his passage. He reveled
in the attention and support of his wealthy Federalist patrons.
Most significantly, though, Adams pushed through Congress the Alien and Sedition Acts of 1798, a set of laws that made it a crime to criticize the president. They so upset Vice President Thomas Jefferson that he left Washington, DC the day they were signed and never again spoke with John Adams in person (they reconciled many years later, but by mail).
Within a few months of passing the laws, Adams had shut down over 20 Democratic Republican (now the Democratic Party) newspapers and imprisoned most of their publishers and editors, including Ben Franklin’s grandson, Benjamin Franklin Bache.
One of Adams’ closest allies on the Supreme Court was Samuel Chase, another big fan of throwing newspaper editors in jail and punishing people who had the temerity to criticize the president.
But back then, Supreme Court justices were also judges on circuit courts. The offenses for which Chase was impeached were as a trial judge, not for his behavior on the Supreme Court.
He presided over multiple prosecutions of Democratic Republicans, most famously John Fries and Thomas Cooper, and campaigned hard for Adams in the election of 1800, where Adams lost the presidency to Thomas Jefferson as Dan Sisson and I detail in Dan’s book The American Revolution of 1800: How Jefferson Rescued Democracy from Tyranny and Faction.
As Chase’s behavior became more and more authoritarian, Jefferson suggested somewhat obliquely that he should be impeached.
Maryland’s Joseph Nicholson, the House member who presided over the impeachment trial of Judge John Pickering and later, at Jefferson’s urging, supreme court Associate Justice Samuel Chase, was the recipient of Jefferson’s note, which read:
“Ought this seditious and official attack on the principles of our constitution, and on the proceedings of a state, to go unpunished? And to whom so pointedly as your self will the public look for the necessary measures? I asked these questions for your consideration; for myself it is better that I should not interfere.”
“I
am surprised that you can so prostitute your talents,” Chase told Martin,
wagging his finger.
Martin, who had won Chase’s acquittal before the Senate years earlier, replied to Chase and the jury:
“Sir, I never prostituted my talents except when I defended you and Colonel Burr, a couple of the greatest rascals in the world.”
The history of impeachments for the Supreme Court ends there. Chase, like Donald Trump, was impeached by the House (73-23) but at his trial Nicholson failed to reach the necessary two-thirds vote in the Senate.
That precedent — and the lack of other impeachments of Supreme Court justices in the intervening years because they’ve generally not been as corrupt or political as Chase or Thomas — largely rules out a successful impeachment today.
But there is another option.
Fifty-four years ago, Republicans went nuts over an “ethics scandal” involving a Democratic-appointed member of the Court, and their effort produced so much pressure that he resigned.
To understand the possibilities, it’s essential to know the precedent that explains how Republicans succeeded in replacing a justice they claimed was corrupt with Harry A. Blackmun back in 1968/69.
Supreme Court Justice Abe Fortas didn’t resign until President Richard Nixon’s campaign manager and Attorney General, John Mitchell, threatened to bring felony corruption charges against Fortas’ wife.
But I get ahead of myself. It’s a truly amazing story that most people alive today know nothing about. It started with “dirty movies” being shown in the US Capitol.
I remember the “Fortas Film Festival” because, when it started in the summer of 1968, I was a teenage boy and curious about the movies that Senator Strom Thurmond was showing to his male peers in that meeting room in the Capitol.
Most people in America were probably also curious; the Supreme Court had recently legalized pornography, but watching it back then meant sitting in a sleazy theater in a sleazy part of town with a bunch of sleazy characters.
But the infamous segregationist Senator Thurmond was on a roll in 1968, playing dirty movies back-to-back for any Senator or aide who wanted to show up. TIME Magazine did a feature on it, noting:
“Day after day last week, Thurmond buttonholed his colleagues to watch the films in darkened Senate offices. One aide of Richard Nixon called it ‘the Fortas Film Festival.’ The Senators were not titillated but shocked, and they left the showings in a grim mood. The screenings apparently swayed some votes away from Fortas. Senators know that middle-class opposition to pornography is rising, and the subject—like the Supreme Court itself—has become a symbol of what is wrong in the U.S.”
The newspapers loved it, as similar “film festivals” popped up on campuses across the country. Yale, for example, got into the act, holding their own “Fortas Film Festival” featuring the same movies Thurmond had shown to the Senate. As The New York Times noted at the time:
“The main feature of the night was ‘Flaming Creatures,’ seen [months earlier] by members of the Senate Judiciary Committee during their debate on Justice Fortas’ nomination as Chief Justice. … In the audience was John T. Rich, editor of the Yale Law Journal. ‘I figured if Senator Strom Thurmond could see this movie, so could I,’ he said.”
So…what provoked the “Fortas Film Festivals”?
It was, purely, a burning desire by conservatives to shift the Supreme Court to the right, amplified by Richard Nixon’s vigorous campaign that year to become president in the November election.
It started in the last year of LBJ’s presidency.
In June of 1968, Supreme Court Chief Justice Earl Warren — a liberal who’d been appointed by Dwight Eisenhower — decided to resign from the Court so that President Lyndon Johnson would have a full six months to replace him with another liberal.
LBJ proposed elevating the only Jewish member of the US Supreme Court to become the new Chief Justice (and Homer Thornberry to fill Warren’s empty seat), but racist and antisemitic “conservatives” like Thurmond — and presidential candidate Richard Nixon — saw the upcoming hearings as a grand opportunity.
They postponed Thornberry’s nomination, front-loading the hearings about putting Fortas in charge of the Court, and then ran an inquisition into Fortas over a $15,000 speaking fee he’d taken to address a college group. (Clarence Thomas has also taken $15,000 in speaking fees, for the record.)
With that “scandalous” payment — and his vote on the Court to legalize pornography — as the excuses, Republicans and racist Southern “conservative” Democrats like Thurmond arrayed a Senate filibuster to block the liberal and Jewish Fortas’ elevation to Chief Justice.
It dragged out for months; on October 2, 1968, it became obvious the filibuster couldn’t be broken and Fortas withdrew his name from consideration for Chief Justice, although he planned to remain on the Court as an Associate Justice like his peers.
By then it was too late for LBJ to elevate another liberal to Chief Justice (Warren stayed on the Court for another half-year to provide continuity) and also too late for LBJ’s nominee Thornberry to even be considered to replace Warren’s empty seat before the presidential election four weeks later.
But that was just the beginning.
Once Nixon came into office on January 20, 1969, he put ending the Court’s “liberal” bent at the top of his agenda. That meant not only replacing Warren (who stayed on until June 23, 1969), but to tip the Court conservative, getting rid of its most liberal member, Abe Fortas.
Attorney General John Mitchell ordered the Justice Department to begin an investigation into Fortas’ wife, Carolyn Agger, who was a lawyer with the DC firm that had previously employed Fortas.
Rightwing media had claimed — without evidence — that documents that might be found in a safe in her office might prove she was involved in a tax-evasion scheme.
There was never any evidence whatsoever, either of Fortas or his wife being corrupt. It was and is not illegal to take a speaking fee: members of the Court do so routinely today. And there was nothing incriminating in her safe.
But Richard Nixon, John Mitchell, and Abe Fortas knew the old legal saw: “A grand jury can indict a ham sandwich.”
Mitchell had also dredged up another payment that Fortas had earned, this one $20,000 a year for serving on the board of a charitable foundation (not uncommon for high-end DC lawyers then or now).
This was also totally legal (and nothing compared to the millions of dollars Ginni Thomas has taken from rightwing groups and Harlan Crow since her husband was put on the Court) but Fortas gave back the money anyway.
Not only did that not help: his returning the money was, Nixon charged, proof that it was corrupt in the first place!
Mitchell then announced he was going to have a Justice Department lawyer named William Rehnquist convene a grand jury to look into the “crimes” that right-wingers were claiming Fortas and his wife had committed.
As Nixon’s White House Counsel John Dean, who was there and knew the players, wrote in his book on the era (The Rehnquist Choice):
“Did the Justice Department have the goods on Fortas? Not even close. Mitchell’s talk was pure bluff. … Lyndon Johnson’s Justice Department had investigated this question [back when Fortas was nominated for Chief Justice in 1968] and found nothing improper…. Reopening of the matter by Richard Nixon’s Justice Department was purely a means to torture Fortas.”
But faced with the possibility of his wife being dragged through the mud and both of them spending years and a fortune defending themselves, Fortas threw in the towel. He resigned from the Supreme Court five months into Nixon’s presidency on May 14, 1969.
With their mission accomplished, Mitchell immediately dropped the threat of the grand jury. As John Dean noted:
“The Fortas resignation meant that Richard Nixon now had two seats to fill on the Court: Earl Warren’s center seat and the seat of Associate Justice Abe Fortas, who was leaving the Court at fifty-nine years of age. It also meant that two of the Court’s most liberal justices were gone.
“Nixon’s
aggressive posture toward the high court was paying off in a big way, with the
help of John Mitchell and his hard-nosed team at the Justice Department,
Rehnquist among them.”
Thus, Nixon was ultimately able to replace three liberal justices on the Court over the following two years, turning it from liberal to conservative (where it remains to this day) for the first time since 1937. They were Harry A. Blackmun (1970), Lewis F. Powell, Jr. (1971), and William Rehnquist (1971).
Which brings us to today.
Aside from Clarence Thomas’ corrupt relationship with Crow, his wife has also benefited from a half-million dollars from Crow for her political activities as well as actively participating in a seditious conspiracy to overthrow the government of the United States.
Instead of trying to impeaching Thomas — an almost impossible lift, given the composition of today’s Senate — the Biden administration and Democrats in the Senate would be better served investigating Ginni’s corruption and attempted sedition.
If
they’re lucky — or strategic — they may be able to get an Abe Fortas outcome.
Thom
Hartmann is a talk-show host and the author of The Hidden History of Neoliberalism and
more than 30+ other books
in print. He is a writing fellow at the Independent Media Institute and his writings
are archived at hartmannreport.com.
This article was produced by Economy
for All, a project of the Independent Media Institute.