We knew that judges are politicians in robes.
We knew the Supreme Court wasn't fair and objective. We consoled ourselves hoping it was middle of the road and reasonable. We can't pretend anymore.
Clarence Thomas has become a problem for the court. He is like the little boy at kindergarten who insists on telling schoolmates that there isn't a Santa Claus. He reveals a secret: We are partisan, and I am shameless about it. Like the kindergarten teacher, the Chief Justice is powerless to stop him. The Bush v. Gore decision in December 2000 laid bare the naked power of the court to find some supposedly-neutral reason for making a partisan decision. The election in Florida was essentially a tie. The 5-4 Court voted Republican.
The Court, especially under institutionalist Chief Justice John Roberts, attempted to repair the damage to the Court's legitimacy. Roberts leaned against his own partisan ideology to stop the Court from over-ruling Congress to end the Affordable Care Act. That made the Court look objective and reserved. After all, it didn't overrule a law that got a House majority, 60 votes in the senate, and a presidential signature. It also served a partisan political purpose. By the time the ACA got to the Supreme Court, the law was popular. He protected the GOP from itself.
The nomination process that put Trump-appointed judges onto the court revealed the partisan reality under the veneer. Roberts could talk "balls and strikes objectivity," but the entire GOP message was partisan victory. Elections have consequences, Lindsay Graham crowed. We won, you lost. Still, there was opportunity for pretense. The selection process might be partisan, but once on the Court, judges supposedly change. They put on black robes of impartiality.
Clarence Thomas spills the beans. His wife actively lobbies the White House Chief of Staff Mark Meadows with multiple text messages urging overthrow of the 2020 election. She pushed Q-Anon theories of sending boatloads of Democrats to GITMO. She said the future of the republic required voiding the election. Mark Meadows returned the messages and reported what the White House was doing. These messages were already revealed to the committee, but Justice Thomas later voted to allow Trump to keep more communications like these, by others and perhaps his wife, secret. Democrats are appalled. Republicans praise Thomas. Republicans insist there is no conflict of interest, no legitimate reason to investigate what Trump and others did, and no reason for Thomas to recuse himself.
It is a high-visibility, high-stakes partisan mess. There is no hiding it. Hereafter, any Supreme Court decision relating to Trump and January 6 will be tainted. If Thomas is part of a majority, it is tainted and illegitimate, because Thomas was defending Trump and his wife's reputation and perhaps freedom. If he is part of a minority and outvoted, then it suggests the alternative, that Thomas was wrong and outvoted by more objective conservatives, but still a bad apple on the Court.
There is no time to rebuild the credibility of the Court for non-controversial objectivity. Its docket will revisit some of the most controversial items in the culture war: Abortion, homosexual rights, inter-racial marriage, contraception, and affirmative action.
The Supreme Court will announce their rulings. They will have as much credibility for objectivity and fairness as Clarence Thomas has. Not too much.
13 comments:
What I see going on here is a coordinated campaign by the liberal media and the Democrats to discredit the Supreme Court because they think they are about to lose on some very significant “culture war” issues; battlespace preparation, in other words.
No one but Clarence Thomas and his wife knows what the relationship between them is like. For all we know, he thinks she’s a nut, but respects her freedom to act on her own beliefs.
I would ask all of us who are married, how much control do you have over what your spouse believes? How much control do you think you should have? How much responsibility should be placed on you for what your spouse believes?
And then there’s the feminist angle. Is a wife allowed to have independent beliefs and act on them? Is husband supposed to control his wife? What responsibility is a husband supposed to have for the independent actions of his wife?
It's one thing to have competing legal interpretations and be sensitive to all manner of nuance in making judgements. Those hundred page briefs attest to the struggle that judges often have when deciding complex issues.
It's quite another to be living with and presumably influenced by someone so biased and divorced from reality as to be an object of ridicule, or pity depending on one's humanity. He certainly doesn't control her behavior, and that leaves us with the suspicion he may condone it.
Thomas should retire. His credibility and legacy are beyond salvaging. But he won't give President Biden an opportunity to replace him.
So, that's that.
Wonder if he could be impeached for not removing himself when he was obviously in a conflict of interest.
Posted for John Coster:
Politically, this seems to be just one more nail in the coffin of public trust in institutions in general (E.g. churches, schools, businesses).This is the mindset and messaging of anarchists and deconstructionists: “ we all know the system is rigged”. So SCOTUS, the last bastion of so-called judicial objectivity is finally unmasked for what it is…. Or is it?
Listening to Jeffrey Rosen, head of the National Constitution Center on Preet Bharara’s podcast the other day, he spun a more positive view of impartiality GOP and Democrat appointed judges. Rosen teaches and facilitates forums with them and he believes most Federal judges are truly committed to the rule of law. Media of all kinds have politicized everything (as they must to draw and keep audiences). This doesn’t mean Thomas is or is not political, but the optics are not good for public trust as you say Peter.
Time again for some historical context. In the eyes of partisans, the SCOTUS is “political” when important decisions cut against their partisan orientation. Justices and decisions are “fair” and “objective” upon similar navel’s eye analyses.
The Court turned political with Bush v. Gore? Sure. Youbetcha. There is a very good reason why the issues listed as “revisiting” the culture wars are controversial in the first place. The Court for decades had become an activist political instrument.
For better and for worse, the Warren Court was the most brazenly activist in history, led by a politician who’d never served a day as judge on any level. Even after Chief Justice Burger then Rehnquist succeeded Warren, the Court hewed left until recently.
Politically speaking, in terms of sheer power, nothing compares to Chief Justice Marshall cementing the SCOTUS as a coequal branch of government by successfully asserting final authority over the meaning and application of the Constitution.
In terms of impact on the social and cultural fabric of the nation, however, nothing remotely compares to the quasi-legislative political legacy of the Warren Court followed by majorities led by the likes of Justices Brennan and William O. Douglas.
In business, professions and government, men and women are expected to avoid conflicts of interest. Potential conflicts should be disclosed and steps taken to mitigate the conflicts. Not only actual or potential conflicts, but also the appearance of a conflict.
This has zero to do with feminism (although some people get confused about that). Any close or business relationship could create a problem, including siblings, parents and their children, gay and lesbian spouses or partners, etc. At issue is what is required by law, what is considered ethical and what the public expects and deserves from our institutions.
"Legally," if a spouse has an "interest" in the outcome of a case, the judge must recuse. That would be the case here with Thomas. The only remedy for a failure to recuse in a clear-cut case is impeachment by Congress (for the Supreme Court).
Low Dudgeon made an excellent comment. The Warren and later courts “found” constitutional rights some people consider invented, and therefore free for o grass or the states to regulate. There were several particularly controversial ones
—end school segregation
—end separate but equal public facilities, like water fountains
—end state prohibition on contraception
—end state prohibition of consensual sex between same sex partners
—end state prohibition of interracial marriage
—end stat prohibition of marriage between same sex couples
There are others.
I will post on this shortly, but speaking for myself I consider these decisions in fact to be rooted in the constitution, even without relying on the Ninth amendment. I don’t consider it “activist” to say my Chinese-born wife and I can get married. I believe it in fact to be there in the 14th amendment equal protection clause. It was unconstitutionally activist and unconstitutional for states to prohibit it.
I would enjoy Low Dudgeon responding to my upcoming blog post. Would he please contact me directly so we might coordinate something
Clarence Thomas’ wife is obviously crazy but for Republicans, that’s the new normal. It must be contagious. The question is whether her madness affects his opinions. For that, we need look no further than Trump’s attempt to withhold documents from the Jan. 6 committee. The Supreme Court rejected his bid. Clarence Thomas provided the lone dissent, without explanation.
There has always been debate over states’ rights vs. the right of the Feds to step in, and it’s usually centered around civil rights and social justice, things some states prefer to restrict. Slavery was one example and those mentioned by Peter are others. The courts used to believe that America should live up to its alleged values of liberty and justice for all. Not anymore.
Editor--
I appreciate tongue in cheek, facetious rejoinders, as a sometime practitioner of the art myself! That said, in my opinion you succeeded here, unintentionally I presume, primarily in furthering my own point about judicial activism under our constitutional system.
Outcome-based jurisprudence undermines the integrity and credibility of the Court as above politics. That's a much more complicated matter than your list of preferred outcomes, all of which I personally share as a policy matter, plus an untrammeled women's right to choose.
Outcome-based judicial rulings, however, especially decisions from SCOTUS, improperly and often harmfully relieve states legislatures and Congress of their responsibilities, as duly checked or approved by voters on a regular basis. Good intentions lead to unexpected, fixed and practically unfixable--because judicial fiat--negative consequences. Excellent articles and books have been written on this.
But one quick example? Brown v. Board (and progeny), right in principle and policy, is among the most poorly reasoned and supported SCOTUS landmarks. It relied on social science that would be laughed out of a community college course today. By legislating, over time, desegregation into integration, it led to courts as social engineers, even school district busing administrators, along with other unwanted--by nearly all--discord and side effects which have resounded for decades from Boston to Arkansas. Roe v. Wade's language and legacies are yet another tale written better elsewhere.
I often wax long on this blog as it is. Complex subjects usually require it. I figured a quick rejoinder to the rejoinder was warranted, and then add later as needed.
Pharisees and other hypocrites.
More whatsboutism ....
He needs to be impeached.
The fact that he was the lone dissent (in support of visiting) Trump's false claims shows his wife has his ear.
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