The US Supreme Court has suddenly lurched to the extreme right. The stunning transformation of the country’s third branch of government, which the Founders famously called “the least dangerous branch”, now seems anything but. Instead, with its new 6-3 conservative majority, the court, which usually moves in a slow and staid manner, has staked out radical positions on crucial issues such as abortion, guns, religion and environmental protections that are far more conservative than the rest of the country. Although he did not write any of the decisions in these contentious cases, they bear the hallmark of one justice: Clarence Thomas.
When he joined the court in 1991, he was only 43, its youngest member. George HW Bush, then president, was under pressure to fill a court opening with a rib-rock conservative, and he promised that Thomas would be a “home run”. For the right, he’s turned out to be a grand slam.
His growing influence has come in spite of the fact that he barely survived his controversial confirmation hearings, in which he was accused of sexual harassment by a reliable law professor, Anita Hill, who once worked for him in the federal government. Senate Republicans saved Thomas, but his confirmation vote was, up to then, the closest in history. He joined the court as an embittered man and has remained so. Except for ageing — he is now, at 74, the court’s most senior judge — little about him has changed. He has lived up to the assurance he gave his clerks during his first term on the court: “I ain’t evolvin’.”
Some justices do change their philosophies over a lifetime on the court. David Souter, another HW Bush nominee, often sided with the court’s liberal wing as he neared retirement in 2009. In contrast, Thomas has always been the court’s most reliably conservative vote. His jurisprudence is based on an extreme interpretation of constitutional originalism, the belief that the text of the constitution ought to be afforded the meaning it would have had when it was written.
This once made him an outlier, often on the losing side of cases, whose rightwing dissents usually did not win over a single other justice. Though he was a hero to conservative legal groups and was former president Donald Trump’s favourite justice, he was dismissed as a fringe figure for much of his tenure.
Yet if Thomas hasn’t evolved, the Supreme Court certainly has. This term, the full force of the 6-3 conservative majority built by Republican presidents, especially with the addition of Trump’s three court picks, has been felt. Although he did not write any of the decisions that the court rained down in the past two weeks — allowing guns to be carried almost everywhere, overturning the constitutional right to abortion, blessing prayer at school football games and weakening environmental regulation — he must have felt a mixture of triumph and sweet revenge.
To understand the astonishing speed of the conservative evolution — really, a revolution — of the Supreme Court, consider that The New Yorker magazine published a long story in 2016 on the occasion of Thomas’s 25th anniversary on the court, headlined, “Clarence Thomas’s Twenty-Five Years Without Footprints”.
This is not like the liberal era of the Warren court in the 1950s and 1960s, when Chief Justice Earl Warren shaped his court with landmark decisions on issues such as school desegregation, prisoners’ rights and interracial marriage. Today’s court isn’t, in fact, a reflection of its chief justice, John Roberts, an establishment conservative who did not favour completely overturning precedent and sweeping away the right to abortion but nonetheless signed on to the decision abolishing Roe v Wade. Roberts sometimes even votes with the court’s three Democrat-appointed liberals. We are now dealing with the Thomas court.
When the Founders established the Supreme Court in the constitution, they envisioned justices who rose above partisan politics, which was partly why federal judges were given lifetime tenure. But the cases decided by the court this year have dealt with the most contentious and partisan political issues in the US: gun control, the separation of church and state and, most divisive, abortion. Some have global implications, like the June 30 decision curbing the government’s ability to regulate carbon emissions. Siding with Republicans on all these issues, the court can no longer pretend it is above politics.
Embraced by Trump, Thomas and his wife Virginia have become a Washington power couple. There has been much controversy of late over the political activities of Virginia, known as Ginni. Her direct involvement in an array of rightwing groups is unprecedented for a spouse of a Supreme Court judge. She visited the White House to suggest conservative appointees to President Trump. Thomas’s network of former Supreme Court clerks and his closest friends rose to top positions in the Trump administration. The glaring conflicts of interest that Ms Thomas’s political work creates for her husband were recently revealed in an investigation by The New Yorker’s Jane Mayer.
Now, Ms Thomas’s political efforts to keep Trump in office and overturn the 2020 presidential election are being scrutinised by the January 6 select committee. She attended Trump’s January 6 2021 rally, which roused a violent, armed mob to go to the Capitol. She sent a fusillade of emails to Trump’s chief of staff, Mark Meadows, urging that the president not concede his defeat in the election. She promoted the false narrative of fraudulent voting in Arizona, pressing state lawmakers to switch their electors from Biden to Trump. Justice Thomas’s former clerk, John Eastman, concocted Trump’s legal (possibly illegal) strategy to overturn the election. After initially agreeing to testify before the committee, she ultimately decided not to appear. Eastman has invoked his rights against self-incrimination.
Ms Thomas’s activities in connection with attempts to overturn the election have also raised questions about Justice Thomas’s lone vote to shield Trump’s records from investigators. The unavoidable question is whether Thomas has discussed court matters with his wife. They say they never have. But the January 6 committee is far from done with its work, and 2020 election-related cases may wind up before the Supreme Court.
I have spent the bulk of my career as a journalist reporting on Clarence Thomas. In 1991, when I wrote about legal matters for the Wall Street Journal, I covered the Thomas-Hill hearings. Afterwards, I spent three years researching and co-writing a book, Strange Justice: The Selling of Clarence Thomas, with Mayer. After investigating almost every aspect of the protagonists’ lives and careers, and finding considerable new evidence, we concluded that Hill had told the truth. Thomas had perjured himself when he denied repeatedly talking to her in his office about pornographic movies.
When I moved to the New York Times in 1997, I periodically wrote about the Supreme Court. After 2014, when I had left the paper, I wrote a political column for The Guardian and was critical of Thomas’s extremism. After the #MeToo movement took off, I again investigated Thomas through the lens of sexual harassment and examined a new incident of groping after he had joined the court. I revealed there were more women who were aware of Thomas’s penchant for talking about porn but who did not testify against him in 1991. In early 2018, New York Magazine published my story with the headline “The Case for Impeaching Clarence Thomas”.
When a jurist commits perjury, it can be grounds for impeachment, although no Supreme Court justice has ever been removed from office. After the publication of Strange Justice in 1994, some Democrats told us they planned to initiate impeachment. But they lost control of the House of Representatives to Republicans within a month of the book coming out. The chances of impeachment are surely still very remote, although some Democrats, including Alexandria Ocasio-Cortez, have called for Thomas to be impeached because he lied about abortion during his confirmation hearing, when he testified that he had never debated Roe v Wade. (Other Democratic leaders have dismissed impeaching Thomas as a “distraction”.) A MoveOn petition to impeach Thomas has attracted more than a million signatures (it too is unlikely to result in anything).
Of course, he is not the only member of the court to have skirted Roe during confirmation hearings. Lawmakers, particularly Maine’s Republican senator Susan Collins, are saying now that they were misled by Trump’s three nominees, who assured them that Roe was settled law, leading them to trust that they would not overturn Roe. The senators claim they were had.
Rereading Thomas’s 1991 testimony on abortion is eerie, because he seems to have set the standard for the evasion used subsequently by his conservative colleagues. (Democratic nominees have also declined to express views on Roe.) Given that just a year after joining the court, he was in the minority in voting to overturn abortion rights in another important case, Planned Parenthood v Casey (a decision that was also reversed by the court last month), it quickly became apparent he thought Roe was wrongly decided, a view he has expressed in other abortion cases since and in speeches. But, in 1992, he was still in the minority and conservatives were in the early stages of taking over the federal courts.
To understand the renewed calls for Thomas’s impeachment, consider his answers to Democrats’ questions on abortion during his confirmation hearings:
SENATOR HOWARD METZENBAUM: I will just repeat the question. Do you believe that the Constitution protects a woman’s right to choose to terminate her pregnancy.
JUDGE THOMAS: I have no reason or agenda to prejudge the issue or to predispose to rule one way or the other on the issue of abortion, which is a difficult issue.
METZENBAUM: I am not asking you to prejudge the case. You certainly can express an opinion as to whether or not you believe that a woman has a right to choose to terminate her pregnancy without indicating how you expect to vote in any particular case. And I am asking you to do that.
THOMAS: Senator, I think to do that would seriously compromise my ability to sit on a case of that importance and involving that important issue.
Joe Biden, then chairman of the Senate Judiciary Committee, tried to pin the nominee down on abortion by asking for his views on the right to privacy, which was a key part of the Roe decision:
SENATOR BIDEN: Does the liberty clause of the Fourteenth Amendment protect the right of women to decide for themselves in certain instances whether or not to terminate pregnancy?
JUDGE THOMAS: My view is that there is a right to privacy in the Fourteenth Amendment.
BIDEN: Does that right to privacy . . . protect the right of a woman to decide for herself in certain instances whether or not to terminate a pregnancy?
THOMAS: The Supreme Court has made clear that the issue of marital privacy is protected, and . . . in the case of Roe v Wade has found an interest in the woman’s right to — as a fundamental interest, a woman’s right to — terminate a pregnancy. I do not think that at this time that I could maintain my impartiality as a member of the judiciary and comment on that specific case.
Biden’s attempt to push Thomas to reveal his views on abortion was as ineffectual as his handling of Hill’s allegations. The Republicans on his committee, especially senators Arlen Specter, Orrin Hatch and Alan Simpson, easily outmanoeuvred him. Biden then used the same unsuccessful approach he now employs as president, running the Thomas confirmation hearings as a bipartisan fact-finding exercise. The Republicans, for their part, were waging a war to save the Thomas nomination and were willing to destroy Hill in the process. They were playing to win. Biden closed the hearings without even calling witnesses who could have corroborated Hill’s allegations, women who had also worked in the federal government for Thomas and experienced similar behaviour. Biden was cowed by the Republicans and Thomas, who called the Senate proceedings a “high-tech lynching” and put the Democrats on the defensive, fearing they would look racist by attacking a black nominee.
Once on the court, Thomas no longer had to conceal his ideology and made it clear he thought previous court decisions had been wrong. The stridency of his criticisms was striking. In a 2000 case, Stenberg v Carhart, Thomas voted to uphold Nebraska’s statute criminalising the performance of “dilation and extraction” abortions, a procedure he labelled “infanticide”. He wrote: “Today, the court inexplicably holds that the states cannot constitutionally prohibit a method of abortion that millions find hard to distinguish from infanticide and that the court hesitates even to describe.” Thomas has repeatedly lambasted the court for prioritising abortion cases above those dealing with the right under the Second Amendment to bear arms.
Prison reform advocates objected to the “heartless” tone of his decisions against criminal defendants. Next year, the court will consider cases challenging affirmative action. Thomas, who was admitted to Yale Law School under affirmative action, opposes it because he claims it erodes the confidence of bright minority students who could have been admitted to colleges on their own.
In truth, before the Trump years, Thomas was not attracting much public or press attention. The flashier, more brilliant conservative was Justice Antonin Scalia, who died suddenly in 2016. That same year, Adam Liptak, the Supreme Court reporter for the New York Times, broke the one story about Thomas that received widespread attention: he had been silent on the bench for 10 years, never asking a single question during oral arguments (though he once cracked a joke). It had been nearly 50 years since any member of the court had gone even a year without asking a question. At the time, Thomas said he did not find asking questions in oral arguments to be useful.
After Trump’s election, he became more loquacious. Jeffrey Toobin, another Supreme Court reporter, provided a further reason for Thomas’s quiet profile: “The truth is that [former chief justice William] Rehnquist and Roberts never trusted Thomas to write an opinion in a big case that could command a majority of even his conservative colleagues.” Will that change now that he’s in the 6-3 majority?
For example, if, as some court watchers speculated, Roberts had peeled away, hesitated about overturning Roe and joined the liberals, the job of assigning the writing of the opinion overturning Roe would have been given to Thomas as the senior judge in the majority. Any time Roberts swings with the liberals, Thomas will usually enjoy this important prerogative.
There are so many what-ifs in how the current far-right composition of the court could have been avoided. The Senate could have tried harder to ram through former president Barack Obama’s selection to replace Scalia, Merrick Garland, who was blocked by Republican Mitch McConnell. (Now, as attorney-general, Garland will be the one who decides whether to prosecute Trump over January 6.) Biden, not Trump, might have chosen who would fill the seat of former justice Ruth Bader Ginsburg, had she not died just before the 2020 election. She also might have retired earlier, while Obama was still president, giving him the chance of pushing through a nominee.
The term ended in late June. Now that it is over, what is next for Thomas? In the coming term, which starts in October, the court will hear cases on many issues where the conservative majority can change the country’s course just as sharply as it did this year on matters such as affirmative action, gerrymandering and state electoral powers. Thomas has warned that the new, muscular majority could move on to overturn other Supreme Court decisions, such as gay marriage, the right to buy contraceptives and other issues. In the past, the court has adhered to the legal principle of stare decisis, to stand by things decided.
The conservative takeover of the court has taken more than 50 years and it could remain in place for that long or even longer. Supreme Court justice Amy Coney Barrett won’t reach Thomas’s age of 74 until 2046. Except for Thomas, the other conservative justices are relatively young and could serve for decades more.
I spent much of my time during the pandemic writing two books for middle-schoolers — a history of Congress and one of the Supreme Court. My friend, the late Walter Dellinger, who was acting solicitor-general during the Bill Clinton presidency, gave me some help with the Supreme Court volume and reminded me there have been other periods when the court was ossified and rightwing. Roger Taney, the fifth chief justice, served from 1836 to 1864 and wrote the infamous decision in the Dred Scott case, denying African Americans US citizenship and forbidding Congress to abolish slavery. During his tenure, the court issued a string of racist decisions. After the civil war, its jurisprudence was more favourable to black people. This time, it may be generations before another shift back is made.
Covid’s retreat may allow the Thomases to set off on their favourite summer adventure, driving across the country in their mobile home. In the past, they have been able to mix with people who had no idea who they were. With all the recent press attention, that may no longer be possible.
Thomas is no longer the quiet backbencher he was. At the end of June, for example, he wrote a dissenting opinion when the court declined to hear a case challenging New York’s Covid vaccine mandate for health professionals. Thomas said healthcare workers should be able to refuse vaccination on the grounds of religious liberty because the Covid vaccines were developed using the cells of “aborted foetuses”, an assertion that is false. But Thomas’s dissent was another vivid example of how dangerous the third branch has become.
Jill Abramson is an author, a lecturer in Harvard University’s English department and the former executive editor of the New York Times
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