Tribe, a constitutional law expert and professor emeritus at Harvard, criticized Thomas on Twitter after the justice issued an order that freezes an order from a lower court that required Republican Senator Lindsey Graham to testify in front of a grand jury.
The grand jury is investigating efforts to overturn the results of the 2020 presidential election in Fulton County, Georgia, and is seeking testimony from Graham about calls he made to Georgia Secretary of State Brad Raffensperger and his staff.
“Justice Thomas is giving the finger to the Court on which he sits, the Chief Justice and Associate Justices with whom he serves, the Constitution he interprets and the Nation that pays his salary,” Tribe wrote on Twitter.
In a separate tweet, Tribe said: “Justice Thomas violated 28 USC 455, requiring any ‘justice’ to recuse when his or her ‘impartiality might reasonably be questioned” or his or her ‘spouse is known by the justice to have an interest that could be substantially affected by the outcome.’"
Tribe was referring to Thomas’s wife, conservative activist Virginia “Ginni” Thomas, who testified in September before the House of Representatives’ Select Committee investigating January 6, 2021, and reportedly maintained that 2020 election was stolen.
Thomas granted a request to stay the subpoena three days after Graham’s attorneys applied to him for it. A panel of the U.S. Court of Appeals for the 11th Circuit denied an earlier request from Graham to block the subpoena on Thursday.
“Senator Graham has failed to demonstrate that he is likely to succeed on the merits of his appeal,” the panel said at the time.
Thomas supervises the 11th Circuit and is responsible for hearing emergency motions for the circuit like the one Graham’s attorneys submitted. The justice issued the order on his own, suggesting he did not put the matter to his Supreme Court colleagues before issuing his decision.
Tribe was not alone in criticizing Thomas for granting the stay, and some social-media users called for the justice to be investigated or even impeached.
Democratic Representative Mark Pocan also pointed to Ginni Thomas.
“Clarence Thomas – husband of 2020 election denier blocks grand jury testimony from election interferer Lindsey Graham,” Pocan tweeted. “Disgusting. Any other judge in the country would recuse.”
Democratic Representative Jan Schakowsky appeared to suggest impeaching Thomas.
“Another day, another conflict of interest for Justice Thomas revealed. Add this to the laundry list of impeachable offenses he has committed. He has no business being on the Supreme Court, and no shame,” Schakowsky wrote.
Senator Graham’s legal team argued that his calls with Raffensperger were part of his work as a senator and that answering such questions is unconstitutional under the speech or debate clause. That clause protects legislators from legal risk with regard to their comments relating to legislative business.
The Court of Appeals for the 11th Circuit rejected that argument on Thursday, however, saying that “Graham has failed to demonstrate that this approach will violate his rights under the Speech and Debate Clause.”
Thomas’s order is known as an “administrative stay,” and it will give the lower court time to consider the case before ruling on Graham’s appeal of the subpoena. A ruling is expected sometime this week.
Newsweek has asked the Supreme Court for comment.