Clarence Thomas is, by far, our most abused Supreme Court justice.
His confirmation hearings in 1991 were, as he memorably put it, a high-tech lynching. Once on the Court, he was allegedly incapable of thinking for himself and was Antonin Scalia’s “lawn jockey,” as Emerge magazine shamefully put it. He rarely participated in oral arguments, supposedly because, in the words of an attorney at the Georgetown Law Center, he “either does not care about the cases or can’t compete intellectually with his colleagues.”
Your sensitivity meter doesn’t have to be in overdrive to detect the racial condescension in these depictions of Thomas. Fair-minded legal analysts long ago abandoned this slighting view and have acknowledged the originality, consistency and influence of Thomas’s work. But here come the media and the Democrats to tell us that his intellectually courageous jurisprudence is all about serving the narrow interests of his political activist wife, Ginni.
In the aftermath of the 2020 election, she sent hair-on-fire texts to then-White House chief of staff Mark Meadows urging him to fight what she believed was a stolen election. This proves, we are told, that Clarence Thomas’ work on the Court is corrupt, and he either has to recuse himself from election- or Jan. 6-related cases or be impeached.
The recusal argument is absurd. Ginni Thomas wasn’t party to any election-related litigation. She didn’t write an amicus brief in any of the litigation. She didn’t even give Meadows any legal advice, besides to keep Sidney Powell front and center (a bad idea that wasn’t acted on).
Ultimately, Ginni Thomas didn’t have any more or any less interest in election-related litigation than any other Republican who believed Trump’s claims of fraud, and there were countless millions of them.
Critics of Thomas point out that he dissented when the Court turned away a meritless challenge by the state of Texas of election practices in other states. Yes, but the dissent reflected Thomas’ well-considered view that the Court shouldn’t summarily dismiss so-called original jurisdiction cases, and he was joined by Justice Samuel Alito, who shares his view. Both Thomas and Alito also dissented when the Court turned away a suit filed by Nebraska and Oklahoma to prevent Colorado from legalizing marijuana, and in another such case, Arizona v. California.
Thomas dissented, too, from the Court’s rejection of Trump’s emergency application to block the release of White House records regarding Jan. 6. In this, Thomas was alone. We can’t know his reasoning because he didn’t explain himself. Thomas has a robust view of presidential power, though, and it’s not unusual for him to go his own way.
In the 2020-21 term, Thomas authored more concurrences and dissents than any other justice, including more solo concurrences and solo dissents.
As Nina Totenberg of NPR put it not too long ago, in a passage dripping with disapproval, “He is the only justice willing to allow states to establish an official religion; the only justice who believes teenagers have no free speech rights at all; the only justice who believes that it’s unconstitutional to require campaign funders to disclose their identity; he’s the only justice who voted to strike down a key provision of the Voting Rights Act; and the only justice to say that the court should invalidate a wide range of laws regulating business conduct and working conditions.”
But we are supposed to believe that his unexplained sole dissent in the Trump records case must be corrupt.
A while ago, the respected Supreme Court watcher Tom Goldstein wrote that if “the measure of a Justice’s greatness is his contribution of new and thoughtful perspectives that enlarge the debate, then Justice Thomas is now our greatest Justice.”
At the end of the day, this latest controversy won’t dent Thomas’ formidable reputation as a jurist, but it’s another mark against his perfervid critics who have no decency or scruple.
Rich Lowry is on Twitter @RichLowry
