Thanks to the unparalleled position of power he has held for three decades, Supreme Court Justice Clarence Thomas — perhaps the most distinctive voice in an institution that has the final say over many of the nation’s most fraught debates — has long enjoyed the luxury of knowing that 330 million Americans are bound to listen to him. The question is, does he ever listen to himself?
To go by his recent and repeated warnings about the dangers of a politicized court, it sure seems as if he doesn’t.
In a talk at Notre Dame last fall, Justice Thomas complained about what he considered unfair press coverage of the court’s decisions. “I think the media makes it sounds as though you are just always going right to your personal preference,” he said. That was before the nation learned that his wife, Virginia Thomas, a high-profile right-wing activist, had traded dozens of text messages with the White House chief of staff as part of a frantic effort to overturn the 2020 presidential election and keep Donald Trump in power. When the Supreme Court later rejected Mr. Trump’s request to block the release to Congress of White House records that may well include some of Ms. Thomas’s communications, Justice Thomas was the sole dissenter.
This month, at a judicial conference in Atlanta, he expressed concern that declining respect for our institutions “bodes ill for a free society” and that young people today don’t have the same respect for the law as older generations. Those remarks came shortly after a draft opinion by Justice Samuel Alito that would overturn Roe v. Wade was leaked to the press — a shocking breach of Supreme Court protocol but, if the draft’s conclusion holds, only the most recent in a growing string of rulings that align suspiciously well with Republican political priorities.
Amid the ongoing outcry over the draft opinion, Justice Thomas took another opportunity to bemoan the fragile status of the court during an event on Friday night sponsored by conservative and libertarian groups. “What happened at the court is tremendously bad,” he said of the leak, comparing it to an “infidelity.” After the leak, he said, trust among the justices “is gone forever.” He added, “I wonder how long we’re going to have these institutions at the rate we’re undermining them.”
Great question. Not much longer, I would say, especially when the people who run them engage in openly partisan attacks, as Justice Thomas did on Friday, accusing liberals of tactics, such as protesting peacefully outside the justices’ homes, that conservatives supposedly never use.
“You would never visit Supreme Court justices’ houses when things didn’t go our way,” he said. “We didn’t throw temper tantrums. It is incumbent on us to always act appropriately and not to repay tit for tat.”
First, and please forgive the presumption, but perhaps His Honor has forgotten the reaction to certain cases that reached the Supreme Court — for example, Brown v. Board of Education? After that landmark 1954 ruling, which struck down the “separate but equal” doctrine and barred the racial segregation of schools, white conservatives across the South were so angry that they refused to obey it. State officials physically blocked Black children from entering schools, standing down only at gunpoint.
Justice Thomas also seems to have drawn a blank on the presidential election of 2000, in which a protracted recount in the pivotal state of Florida was interrupted by a posse of Republican operatives, campaign staffers and lawyers in suits, chanting loudly and angrily outside a Miami election office — an incident that became known as the Brooks Brothers Riot. A few weeks later, the Supreme Court shut down the recount for good, handing Florida’s electoral votes, and thus the White House, to the Republican candidate, George W. Bush. The vote was 5 to 4, with all Republican-nominated justices, including Justice Thomas, in the majority.
There is no question that the court has become politicized, to its and the nation’s great detriment. But to be subjected to a lecture on that fact by Justice Thomas, of all people, is like listening to a plutocrat lounging by his infinity pool in a bathrobe, eating a gold-plated steak while bemoaning the horrors of extreme income inequality.
Has it really not occurred to the justice that by giving partisan political speeches in partisan political environments, he is precisely what is damaging the integrity of the Supreme Court? Perhaps being cosseted in prestige and power for so long makes it easy to ignore the consequences of your words and actions. Justice Thomas isn’t alone on that count, of course. In 2004, Justice Antonin Scalia went duck hunting with Vice President Dick Cheney and accepted free air travel from him, even as Mr. Cheney had a case pending before the court. In 2016, Justice Ruth Bader Ginsburg called Mr. Trump “a faker” in a CNN interview. “I can’t imagine what the country would be — with Donald Trump as our president,” she told the Times in a previous interview. The Times editorial board criticized the justices’ behavior in both cases, arguing that, as we said at the time, they should watch what they say and do “in the interest of justice, and of the court’s reputation.”
These days, Justice Thomas and his fellow right-wingers are barely pretending to care about the court’s reputation; they’re just whining about public outrage at their rulings even as they flaunt the most politicized majority in memory. There are now two members of the court, Justice Thomas and Justice Brett Kavanaugh, who have attacked Democrats and liberals, as a group, in public settings. (Small World Dept.: Justice Kavanaugh — who accused Democrats at his 2018 confirmation hearing of an “orchestrated political hit” against him and warned that they had “sowed the wind” — was a member of the legal team that helped Mr. Bush prevail in the 2000 election fight.)
Even Senate Republicans’ outrageous engineering of the court’s current right-wing supermajority seems to have escaped Justice Thomas’s concern. At the Friday event — again, remember, sponsored by conservative groups — he claimed that Republicans had “never trashed a Supreme Court nominee.” Yet doesn’t history record that they openly stole a vacancy from President Barack Obama in 2016 by refusing even to give a hearing to his third nominee, Merrick Garland? Au contraire, according to Justice Thomas: Mr. Garland “did not get a hearing, but he was not trashed.” As Tom Cruise’s contract killer in “Collateral” said after shooting a man who then fell out of a tall building, “I shot him. Bullets and the fall killed him.”
The Supreme Court has always operated within and not outside politics; like the rest of our government, it consists of human beings. Still, the justices have generally striven to stay above the fray. In the interest of protecting and promoting their institutional legitimacy, they have come together to decide some of the most contentious cases; the vote in Brown was 9 to 0, in Roe 7 to 2. Today’s right-wing justices appear to have no qualms about narrow victories, even though five of them were appointed by presidents who first won the presidency after losing the popular vote. Perhaps their brazenness is not in spite of this fact but because of it. They ascended to their high position in a manner that disregarded a majority of the American people, so why not rule that way, too?
The Supreme Court is not there to vindicate the demands of the majority, but neither is it there to thumb its nose at that majority again and again, in a nakedly partisan way. If Justice Thomas is genuinely concerned about the eroding faith in his own institution, the first thing he can do is look in the mirror. The next thing he can do — I’ll say it again — is step aside and give the job to someone who will actually work to protect the integrity of the court.
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