The Oath (37 page)

Shortly before Obama won the presidency, Ginni Thomas took a position in Washington with Hillsdale College, a small liberal arts institution in rural Michigan. The school had no formal religious affiliation, but it had been described by the
National Review
as “a citadel of American conservatism.” Thomas ran a speaker series for the college in Washington, called the Center for Constitutional Studies and Citizenship. After she was named to the post, she stated that Hillsdale students “always study our Western heritage, American history, and the Constitution. Maybe some of what they learn at Hillsdale will rub off.” Thomas brought in conservative speakers on such subjects as “The Meaning and Intent of the Second Amendment” and “The Constitutional Roots of the Free Enterprise System.” For her first three decades in Washington, Ginni Thomas was a behind-the-scenes player, her name known mostly by other conservatives in the capital.

But after the Tea Party’s rally on September 12, 2009, Ginni Thomas took on, for her, an unprecedented public role as a fiery and outspoken leader in the conservative cause. She told Fox News that she decided to move to the front lines “because of the march on Washington on September 12th, and seeing and being inspired by the real people who came and spent their own money to get to Washington.” She started Liberty
Central, a nonprofit at the forefront of conservative advocacy. According to tax records, it was funded by two donations: one of $500,000, the other of $50,000. Under then-current law, she was not obligated to disclose the identities of her contributors, and she never did so. Liberty Central had a website, but mostly the organization appeared to exist to support Ginni Thomas’s travels.

Thomas spent much of 2010 on a coast-to-coast campaign against the Obama administration. As she said in an introductory video on her website, “If you believe in limited government, individual liberty, free enterprise, national security, and personal responsibility, and have felt these principles are under attack from Washington, then you’ve come to the right place.” In a later interview, she said, “I’ve never seen, in my thirty years in Washington, an agenda that’s so far left. It’s a radical, leftist agenda that grabs a lot of power to Washington so that Washington elites can pick the winners and losers.”

All who know Clarence and Ginni Thomas remark on the depth of their love for each other. They travel the country together, often in the large motor coach that the justice calls “the bus.” He is a devoted football fan, and sometimes they go to see Dallas Cowboys games or those of the Nebraska Cornhuskers. (Justice Thomas adopted the team of his wife’s home state.) On other occasions, they just set out and drive, usually stopping in Walmart parking lots, which allow such large vehicles to stay overnight.

The couple also share political views. In his own speeches, Justice Thomas expresses himself in terms similar to those of his wife. Answering questions at a law school in Florida, he said, “The government has to be limited, so you have separations of powers, and some of the other enumerated powers that prevent the government from becoming our ruler. I don’t know if that’s happened already.” Ginni Thomas’s contempt for “elites,” which she shared with the Tea Party at large, also mirrored a theme in Justice Thomas’s writings. Dissenting from O’Connor’s opinion in
Grutter
, upholding the affirmative action program at the University of Michigan Law School, Thomas wrote, “All the Law School cares about is its own image among know-it-all elites.” In a concurring opinion in
Parents Involved
, the 2007 case that invalidated school integration plans in Seattle and Louisville, he added, “If our history has taught us anything, it has taught us to beware of elites bearing racial theories.” In his autobiography, he described the ordeal of his confirmation hearings as a time when “America’s elites were arrogantly
wreaking havoc on everything my grandparents had worked for and all I’d accomplished in forty-three years of struggle.” More than any other justice, perhaps more than any other public figure, Clarence Thomas helped inspire the Tea Party movement.

For the Thomases and the Tea Party movement, there was one issue that defined their political views in the Obama era: opposition to the president’s health care reform plan.

Health care reform was a major issue in the presidential election of 2008. Until Lehman Brothers failed, the candidates talked about health care more than any other issue. It was one of the few areas of substantive disagreement between Hillary Clinton and Obama, and it came up often in the many debates between the two. Clinton supported an individual mandate—a requirement that all Americans purchase health insurance, with government subsidies for those who could not afford it on their own. Obama opposed the mandate, pointing out in a television advertisement before the Pennsylvania primary: “What’s she not telling you about her health care plan? It forces everyone to buy insurance, even if you can’t afford it.
And you pay a penalty if you don’t.”

Once Obama locked up the nomination, however, his view changed. As the Princeton scholar Paul Starr reported in his account of the health care battle, Obama recognized that the insurance industry would not cooperate in the reform process
unless there was a mandate. Obama understood that the government could not force insurers to accept individuals with preexisting conditions unless the risk pool included virtually every American; he needed an individual mandate to make the numbers work. As Obama told Neera Tanden, the longtime Clinton adviser who became Obama’s campaign policy director for the general election, “I kind of think Hillary was right.”

So when Obama and senior Democrats unveiled their health care reform ideas, shortly after the election, they all included an individual mandate. It was the heart of the plan, and as during the primaries, the proposal was intensely controversial. Conservatives stated that the plan amounted to a “government takeover” of health care. The issue dominated American politics well into the summer of 2009.

But the most significant aspect of the debate was something that was never said. Although the individual mandate had been a matter of
major public controversy for two years,
no one suggested that the proposal was unconstitutional
. Not a single public figure raised the issue. No one wrote an op-ed piece; no one in Congress gave a speech on the subject. Of course, the Obama plan was opposed with great passion. Thousands of people, including some of the best political and legal minds in the country, devoted their professional lives to defeating the Obama plan. Yet not one of them came up with the argument that the plan was unconstitutional.

That silence is significant. If there had been a plausible argument that Obama’s plan (or Clinton’s plan) for an individual mandate was unconstitutional, it stands to reason that
someone
would have mentioned it during those many months. No one did. The reason was obvious. The federal government had a long and intimate regulatory connection to the health care industry. Medicare and Medicaid were central parts of Lyndon Johnson’s Great Society, and there had been no doubt of their constitutionality for decades. Obamacare, as some called it, was simply an extension of this well-established federal role.

Furthermore, the individual mandate had been a central part of health care proposals for many years, often from conservative sources. The idea first came to wide public attention in 1989, when it was proposed in a plan sponsored by
the conservative Heritage Foundation. For many years, Newt Gingrich himself supported the individual mandate. In 1993, he said on
Meet the Press
, “I am for people, individuals—exactly like automobile insurance—individuals having health insurance and being required to have health insurance.” He
repeated his support for the idea as recently as 2005. Gingrich never suggested the idea—his idea—was unconstitutional. In 2006, Governor Mitt Romney used the individual mandate as the centerpiece of his health care reform plan for Massachusetts—also without controversy about its constitutionality.

Finally, though, as the debate about Obama’s plan reached its crescendo, someone came up with the constitutional argument. Peter Urbanowicz had been deputy general counsel of the Department of Health and Human Services under George W. Bush, and during the summer of 2009, he was a health care consultant in Washington. Following the debate in the press, he realized there was an angle that he thought had been neglected. Working with Dennis G. Smith, a former colleague at HHS who now worked for the Heritage Foundation, he decided to write up his thoughts for the Federalist Society website.
The two authors posted “
Constitutional Implications of an ‘Individual Mandate’ in Health Care Reform” on July 10, 2009, asserting that “this individual mandate, if passed, would be an unprecedented federal directive that might call into question the constitutionality of such an action under Congress’s taxation or interstate commerce ‘regulatory’ authority.”

The Federalist Society article was written in three thousand carefully chosen, lawyerly words, but the effect on the health care debate was electric. David B. Rivkin Jr. and Lee A. Casey, who had worked in the Reagan and George H. W. Bush administrations, wrote an op-ed piece in
The Washington Post
translating the Urbanowicz-Smith article into more colloquial language. Randy Barnett, a law professor at Georgetown, soon became the public face of the argument that Obama’s proposal was unconstitutional. Republican members of Congress added this objection to their bill of particulars against the individual mandate.

But no one made the case against Obama’s plan with greater passion than Virginia Thomas.

In February 2010, Virginia Thomas said: “We all know we’re at a big fight in our historical times and I wanted to join a lot of you on the front line. I’ve been with think tanks, and I’ve been behind the scenes, but I do want to partner with the Tea Party movement and the people we can find there who have all the right instincts.” In March, Obama signed the health care law. In April, Ginni Thomas stated: “Let me tell you, there’s a war going on, and Washington wants to make it look real complicated, real technical. It’s not so complicated, it’s not so technical.… You know what it comes down to? Are we gonna be self-governed by a Constitution that starts with ‘we the people,’ or are we gonna be ruled by elitists who want to govern our cradle-to-grave lives?” On Fox News, in May, Ginni added: “The audacity of power grabbing that I’m seeing right now in cap-and-trade, health care, the stimulus plan, it’s corrupt. It’s a big power grab. It’s picking winners and losers from Washington; it’s abhorrent to our founding principles.” At the Steamboat Institute in Colorado, in August, she said: “We need a constitutional audit to help set up a system where Congress can reconsider different functions, and programs, and agencies.… I think we need a big spending reduction and no new taxes.… I think we need to repeal Obamacare.” In Florida,
noting her support for Republicans running for office in the midterm elections, she claimed, “We support the more constitutionally inclined candidate.”

On occasion, especially in television interviews, Ginni was asked about her husband’s view of her activities. At a Dallas appearance, she said, “My husband and I do really different things, by the way, but there was a tornado over our wedding when we got married. God knew that we were both troublemakers coming together. I do policy, he does law, and I don’t understand that world and I’m glad God didn’t tell me to do that, because I don’t know how to do that.” Justice Thomas, too, often drew the same law-versus-policy distinction when he was questioned about his wife’s work. Actually, both Thomases overstated Ginni’s ignorance about legal matters. After all, she was a lawyer, and she, too, invariably invoked the Constitution as the authority for smaller government.

As the midterm campaign of 2010 built toward its climax, Ginni Thomas’s activities became so prominent that she drew some journalistic scrutiny. On Saturday, October 9, the
New York Times
ran a front-page story headlined “Activism of Thomas’s Wife Could Raise Judicial Issues,” which was a straightforward account of Ginni’s political campaign.

At 7:31 that morning, Ginni decided to make a phone call.

THE THOMAS COURT

T
he Clarence Thomas–Anita Hill hearings remain one of the great set pieces of recent American history. Even two decades later, the facts are familiar. Anita Hill, also a graduate of Yale Law School, worked on Thomas’s staff at the Department of Education and then at the Equal Employment Opportunity Commission. According to her testimony, Thomas made a series of crude advances to her, which included references to pornographic movies starring Long Dong Silver and utterances like “Who has put pubic hair on my Coke?” Thomas denied her allegations categorically and denounced the hearings as a “high-tech lynching for uppity blacks who in any way deign to think for themselves.” On October 15, 1991, Thomas was confirmed in the Senate by a vote of 52–48.

Neither the Judiciary Committee nor any other government office has seen fit to reexamine the controversy, although a good deal of evidence has since emerged about the protagonists and their testimony. Near the end of the hearings, several other women who had worked for Thomas were prepared to corroborate Hill’s testimony that Thomas had a history of making female subordinates uncomfortable with personal and sexual talk. The group included Angela Wright, Rose Jourdain, and Sukari Hardnett; other associates of Thomas’s, among them Kaye Savage and Fred Cooke, would have sworn to the nominee’s long-standing interest in pornography, again corroborating Hill’s account. But Joseph Biden, then the chairman of the Judiciary Committee, decided not to call these witnesses. In 2011, Lillian McEwen, a Washington lawyer who had a long-term romantic relationship with Thomas before he
met Ginni, published a memoir,
D.C. Unmasked & Undressed
. She, too, remarked on the justice’s “strong interest in pornography.” She also said that Thomas had designated certain colleagues as prospective sexual partners. In short, virtually all the evidence that has emerged since the hearings corroborated Hill’s testimony.