This ship sailed when then Senate Majority Leader Mitch McConnell opened a seat in court for almost a year during then President Barack Obama's tenure to allow Republicans to occupy it. It sailed again when McConnell went through Amy Coney Barrett's endorsement weeks before an election. And thanks to the actions of the Thomasen, it has sailed repeatedly.
More recently, this has been brought up in relation to big tech. Republicans feel censored by Facebook, Twitter, and Google, despite abundant evidence that Republicans are in fact receiving child-glove treatment from Facebook in particular.
Virginia Thomas has sent blasts of email promoting a website affecting the network through big tech "corporate tyranny". Clarence Thomas wrote a concurring opinion on a case dealing with Donald Trump's habit of blocking his critics on Twitter and railing against the controls. "of so much talk in the hands of a few private parties ”and the“ glaring concern ”about freedom of expression.
On the one hand, the fundraiser and the organizer collect contributions and arouse opposition; on the other hand, the righteousness proclaimed by the law.
This is not a new story. Virginia Thomas started Liberty Central in 2009 with secret donations made possible by the Supreme Court decision of Citizens United that same year. The very existence of these secret donations raised ethical questions, legal ethicists said at the time.
”It's shocking to have a Supreme Court judge sitting on a case that implies the interests of someone who may have helped organize his wife in very basic ways. “Deborah Rhode, director of the Stanford University Center on the Legal Profession, told the New York Times in 2010.
"The fact that we can't figure that out is the first problem," she said. Not to mention, "How can the public make judgment about adequacy if they don't have the basic facts?"
Virginia Thomas and Liberty Central also fought fiercely against the Affordable Care Act, which of course repeatedly landed before the Supreme Court. While the Supreme Court justices are supposed to withdraw on conflict of interest cases, they can choose when to do so. Nobody can do them, which means Clarence Thomas can be as unethical as he would like.
So, no, Judge Breyer, expanding the court – something with a lot of historical precedent – or otherwise reforming it would not undermine confidence by creating perceptions of political motivation. You just have to look around the square to see what that did.