It was 10 days ago when Justice Clarence Thomas appeared at a judicial conference and argued that the judiciary is threatened if Americans are unwilling to “live with outcomes we don’t agree with.” Left unacknowledged was Ginni Thomas’ political activism, and her efforts to overturn the 2020 election because she wasn’t willing to live with an outcome she didn’t agree with.
But if the conservative jurist’s rhetoric represented a failure of self-awareness on May 6, Thomas’ arguments took a more self-defeating turn a week later.
At an event on Friday night, the justice reflected on the recent leak of a draft ruling, telling an audience, “What happened at the court is tremendously bad. I wonder how long we’re going to have these institutions at the rate we’re undermining them.”
The concern is hardly outrageous, but what Thomas seemed oblivious to was his own role in undermining public confidence in the institution on which he serves.
The justice appeared at a conference organized by conservative political organizations — the American Enterprise Institute, the Hoover Institution, and the Manhattan Institute — and seemed eager to frame disputes in a left-vs-right dynamic in which he gladly took a side. The New York Times reported:
Justice Thomas said the left had adopted tactics that conservatives would not employ. “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.”
Part of the problem was Thomas’ use of words such as “we” and "us,” as an extension of his willingness to publicly present himself to conservatives as a fellow ideologue. But just as notable is the degree to which the justice is wrong: A year after the Jan. 6 attack on the Capitol, for any prominent political voice to insist the right doesn’t “throw temper tantrums” is to suggest an alarming detachment from current events.
Thomas added that conservatives had “never trashed a Supreme Court nominee.” I realize that two months ago may seem like ancient history to some, but as regular readers may recall, during Ketanji Brown Jackson’s Supreme Court confirmation hearings, Americans saw Republican senators go after Jackson with “barely coded appeals to racism.”
GOP senators’ antics were disrespectful, and at times embarrassing. The Washington Post’s Michael Gerson went so far as to argue that the ways in which GOP senators approached this fight reflected “a Republican Party in decay.” One Republican senator even launched an attack ad targeting Jackson with deceptive slander after she’d already been confirmed.
Perhaps Thomas could elaborate on what he means by “trashed”?
But perhaps most glaring of all was the justice’s willingness to defend Senate Republicans’ abuses. Politico reported:
Thomas also ventured into discussion of some topics sitting justices rarely opine on publicly. He defended the Senate’s refusal to consider Judge Merrick Garland when President Barack Obama nominated him in 2016 to fill the vacancy caused by the death of Justice Antonin Scalia. The Senate was simply following a policy articulated by then-Sen. Joe Biden, when he chaired the Senate Judiciary Committee, of not confirming a Supreme Court nominee in the last year of a president’s term, Thomas asserted.
Again, it’s a problem that Thomas, an ostensibly neutral arbiter on the nation’s highest court, found it necessary to publicly defend Republicans’ tactics. That simply isn’t his job. If the justice is concerned about public respect for and confidence in the Supreme Court, rhetoric like this is exactly the sort of thing he should avoid.
But it’s a bigger problem that Thomas’ defense of GOP senators’ efforts was factually incorrect. Republicans were wrong about what Biden said in 1992, and Thomas echoing talking points that were discredited six years ago only added insult to injury.
The justice specifically said on Friday that under the made-up Biden rule, “you get no hearing in the last year of an administration.” That’s not even close to what Biden actually said, and the fact that a sitting justice peddled a bogus, partisan argument like this is exactly the sort of thing that further undermines the institution.
Last fall, Thomas insisted that justices aren’t “politicians.” Then why does he keep acting like one?