Justice Clarence Thomas closed out the Supreme Court term doing what he loves most: ranting about abortion. On Friday, as the justices teed up more cases for next term, Thomas issued a screed about Alabama’s “dismemberment abortion” statute. A lower court blocked the law because it banned the safest, most common second-trimester abortion procedure, but did so begrudgingly, urging SCOTUS to overrule Roe v. Wade in the process. Thomas seized on Alabama’s appeal to decry “abortion via live dismemberment.” The court’s “abortion jurisprudence,” he wrote, “has spiraled out of control.” In fact, the right to choose has no basis in “the text of the Constitution.” (For ambiguous reasons, he still concurred in the decision not to take the appeal.)
Thomas penned many such missives throughout this term, calling on his colleagues to overrule decades of progressive precedent that he happens to dislike. But he didn’t stop there. Thomas seems to feel increasingly unrestrained by any notions of judicial propriety; his recent opinions bashed, among other targets, the media, a lower court judge, and (naturally) women who get abortions. He has embraced a freewheeling, aggrieved style reminiscent of a late-career Antonin Scalia. And he seems to be having the time of his life.
A day before Thomas’ “dismemberment” diatribe, he authored a partial dissent from the court’s decision blocking the Trump administration from adding a citizenship question to the 2020 census. Ignoring the mountain of evidence that Commerce Secretary Wilbur Ross lied about his reason for inserting the question, Thomas lashed out at U.S. District Judge Jesse Furman for challenging Ross’ falsehoods. Furman, an Obama appointee, was clearly “a judge predisposed to distrust the Secretary or the administration,” Thomas wrote. And what he had done amounted to arranging facts “on a corkboard and—with a jar of pins and a spool of string—create an eye-catching conspiracy web.”
Here is a sitting Supreme Court justice attacking a district court judge as both a Democratic hack (“predisposed to distrust”) and a wild-eyed conspiracy theorist. Why not take the next step and call Furman an “Obama judge”? By the way, Justices Neil Gorsuch and Brett Kavanaugh signed onto this rhetoric without any apparent reservations. Looks like not every justice agrees with Chief Justice John Roberts that the federal judiciary doesn’t break down along partisan lines.
Thomas went similarly berserk, this time on the press, in his dissent from the court’s decision in Flowers v. Mississippi. That case involved a white prosecutor who tried a black man six times for the same crime, consistently striking as many black people from the jury as he could. The court ruled the prosecutor had (obviously) violated the Constitution. Thomas argued otherwise: He wanted to overturn the landmark case that prohibits prosecutors from striking minorities from the jury on the basis of race. While he was at it, Thomas made a point to add that SCOTUS probably only took the case because it “has received a fair amount of media attention” (namely, a popular podcast). The media, he warned, frequently seeks “to titillate rather than to educate and inform.” Basically, Thomas dismissed the podcast about Curtis Flowers and his case as fake news that unduly influenced the court. And Gorsuch joined him!
While Thomas was assailing the press as a bunch of biased titillators, he was also trying to reverse the constitutional protections that shield journalism from crippling lawsuits. In February, the justice declared that he wants to overturn New York Times v. Sullivan, a landmark 1964 ruling that sharply restricts the ability of public figures, including government officials, to sue for defamation. Thomas decried Sullivan as “policy-driven decisions masquerading as constitutional law” and argued that lawmakers are “perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm.” In reality, they are definitely not—that’s a key reason why the First Amendment exists, to limit the government’s ability to “balance” competing interests by permitting the suppression of speech. But it seems Thomas agrees with Trump that courts should “open up our libel laws” anyway, allowing state officials to resume arresting their critics or suing them into silence.
That same month, Thomas tore into another venerated precedent: Gideon v. Wainwright, which requires states to provide public defenders to indigent defendants under the Sixth Amendment. “History proves,” the justice wrote, “that the States and the Federal Government are capable of making the policy determinations necessary to assign public resources for appointed counsel.” This claim is also demonstrably, outrageously false. Today, public defenders across the country are overworked and underpaid. States are continually slashing their budget for indigent defense, creating major backlogs that leave defendants without counsel for long stretches. To which Thomas says: Who cares? “It is beyond our constitutionally prescribed role to make these policy choices ourselves.” Gorsuch joined the assault on Gideon, too—demoting the Sixth Amendment from a constitutional guarantee to a policy choice.
Return, finally, to abortion, Thomas’ favorite bugaboo. In May, the court declined to hear a challenge to an Indiana law that barred abortions on the basis of fetal sex, race, or disability. Its decision let stand a lower court ruling that permanently blocked the Indiana ban. Thomas joined his colleagues in turning away the case but used the opportunity to pen a 20-page polemic condemning women who get abortions as eugenicist child killers. Abortion, he wrote, “is an act rife with the potential for eugenic manipulation,” and states should be empowered to stop callous women from terminating a fetus due to “unwanted characteristics.”
Thomas also provided a history lesson about the 20th-century eugenics crusade, asserting that it laid the groundwork for today’s pro-choice movement. There was one major problem with Thomas’ lesson: It wasn’t true. The justice cited Adam Cohen’s superb book Imbeciles repeatedly—prompting Cohen to write a rejoinder to Thomas explaining why his claims were false. Thomas had “misleadingly” suggested the push to legalize abortion grew out of the eugenics movement. That, Cohen wrote, just isn’t true. Eugenicists did not support abortion; they favored birth control, and Thomas’ effort to conflate the two creates “a kind of historical guilt-by-association.” Thomas’s opinion, Cohen concluded, “is an example of a common form of argumentation: the false analogy to a universally acknowledged historical atrocity.” Put differently, Thomas tried to smear pro-choice advocates by tying them to eugenicists, but that link simply does not exist.
Thomas surely does not care about Cohen’s rebuttal. His jurisprudence, his entire life philosophy, rests on the premise that he knows best—that’s why he does not believe in following precedent unless he is personally convinced that it is correct. He is convinced that he understands the Constitution better than every justice who came before him and disagreed with his interpretations. In that sense, his worldview is strikingly Trumpian: It rests on “believe me,” and “I have the best words,” and “nobody’s ever done a better job than I’m doing,” an absolute certainty that he is a very stable genius.
Like Trump on a comic-insult tear, Thomas appears to be having a blast. His opinions exude self-righteous energy; they are lively and, at times, kind of funny. (That crazy wall jab in the census case read like a higher-brow Trump insult.) Thomas is plainly emboldened by Trump’s presidency and eager to bring the president’s Fox News energy to the court. He might repel the chief justice in the process, but he’s done caring what squishes like John Roberts think. Of course, Thomas has also spent the term scoffing at retirement rumors. Why would he step down now? The real fun is just beginning.
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