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      Clarence Thomas: supreme court could be ‘compromised’ by politics

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      Clarence Thomas: supreme court could be ‘compromised’ by politicsThe court is set to rule this year on divisive issues including abortion, gun control, the climate crisis and voting rights

      The Agenda: how the supreme court threatens US democracy
      The US supreme court could “at some point” become “compromised” by politics, said Clarence Thomas – one of six conservatives on the nine-member court after Republicans denied Barack Obama a nomination then rammed three new justices through during the hard-right presidency of Donald Trump.Who has more influence on supreme court: Clarence Thomas or his activist wife?Read more“You can cavalierly talk about packing or stacking the court,” said Thomas, whose wife, Ginni Thomas, has come under extensive scrutiny for work for rightwing groups including supporting Trump’s attempts to overturn an election.“You can cavalierly talk about doing this or doing that. At some point the institution is going to be compromised.”Thomas was speaking at a hotel in Salt Lake City on Friday.“By doing this,” he said, “you continue to chip away at the respect of the institutions that the next generation is going to need if they’re going to have civil society.”The court is set to rule this year on divisive issues including abortion, gun control, the climate crisis and voting rights. Conservative victories are expected. The conservative-dominated court has already ruled against the Biden administration on coronavirus mitigation and other matters.The US constitution does not mandate that the court consist of nine justices. Some progressives and Democratic politicians have therefore called to expand it, in order to reset its ideological balance. Democrats in Congress last year introduced a bill to add four justices and Joe Biden has created a commission to study expansion.Few analysts think expansion is likely to happen.Republican senators are currently attacking Biden for his campaign promise to nominate a first Black woman to the court, a promise he fulfilled by nominating Ketanji Brown Jackson to replace the retiring Stephen Breyer.Republican presidents have nominated justices on grounds of identity, most recently when Trump said he would pick a woman to replace Ruth Bader Ginsberg, the liberal lion who died in September 2020.Ignoring their own claims about the impropriety of confirmations in election years, made in denying Merrick Garland even a hearing to replace Antonin Scalia in 2016, Senate Republicans installed Amy Coney Barrett, a hardline Catholic conservative, as Ginsberg’s replacement.In Utah on Friday, Thomas also voiced a familiar conservative complaint about so-called “cancel culture”, the supposed silencing of voices or world views deemed unacceptable on political grounds.He was, he said, “afraid, particularly in this world of cancel culture attack, I don’t know where you’re going to learn to engage as we did when I grew up.“If you don’t learn at that level in high school, in grammar school, in your neighborhood, or in civic organizations, then how do you have it when you’re making decisions in government, in the legislature, or in the courts?”Thomas also attacked the media for, he said, cultivating inaccurate impressions about public figures including himself, his wife and Scalia.Ginni Thomas has faced scrutiny for her involvement in groups that file briefs about cases in front of the supreme court, as well as using Facebook to amplify partisan attacks.Thomas has claimed the supreme court is above politics – a claim made by justices on either side of the partisan divide.Congress is preparing for confirmation hearings for Jackson. She will be installed if all 50 Democratic senators back her, via the casting vote of the vice-president, Kamala Harris. Some Republicans have indicated they could support her too.In Utah, Thomas recalled his own confirmation in 1991 as a humiliating and embarrassing experience. Lawmakers including Biden grilled Thomas about sexual harassment allegations from Anita Hill, a former employee, leading him to call the experience a “high tech lynching”. Biden has also been criticised for his treatment of Hill.‘The Scheme’: a senator’s plan to highlight rightwing influence on the supreme courtRead moreOn Friday, Thomas said he held civility as one of his highest values. He said he learned to respect institutions and debate civilly with those who disagreed with him during his years in school.Based on conversations with students in recent years, he said, he does not believe colleges are now welcoming places for productive debate, particularly for students who support what he described as traditional families or oppose abortion.Thomas did not reference the future of Roe v Wade, the 1973 decision that guaranteed abortion rights. The court on which he sits is scheduled to rule this year on Dobbs v Jackson Women’s Health Organization, concerning whether Mississippi can ban abortions at 15 weeks.The court is expected to overturn Roe. While the justices deliberate, conservative lawmakers in Florida, West Virginia and Kentucky are advancing similar legislation.
      The Associated Press contributed to this report
      TopicsClarence ThomasUS supreme courtUS constitution and civil libertiesLaw (US)US politicsRepublicansUS CongressnewsReuse this content More

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      To protect the supreme court’s legitimacy, a conservative justice should step down | Lawrence Douglas

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      OpinionUS politicsTo protect the supreme court’s legitimacy, a conservative justice should step downLawrence DouglasIf presidents do not get to replace justices in an election year, then Coney Barrett’s confirmation is illegitimate; if presidents do, then Gorsuch’s is illegitimate. You can’t have it both ways Tue 21 Sep 2021 06.15 EDTLast modified on Tue 21 Sep 2021 06.19 EDTIn Planned Parenthood v Casey, a landmark decision from 1992, the US supreme court memorably noted that its “power lies … in its legitimacy”. If the people come to question the court’s legitimacy, they will cease to accept the “the Judiciary as fit to determine what the Nation’s law means and to declare what it demands”.It appears that Justices Clarence Thomas and Amy Coney Barrett share these worries. In separate remarks this month, both justices sought to assure the public that, in Coney Barrett’s words, “this court is not comprised of a bunch of partisan hacks”. Thomas said much the same, seeking to disabuse his listeners of the belief that justices “are just always going right to [their] personal preference”.Triggering the justices’ concerns was the withering criticism that has been directed at the court’s recent decision to leave in place, at least for now, a Texas law that turns ordinary citizens into de facto bounty hunters empowered to sue anyone who performs or “aids and abets” an abortion for a woman past her sixth week of pregnancy. The Texas law cannot be squared with the court’s ruling in Planned Parenthood, which recognized that a “woman’s right to terminate her pregnancy before viability … is a rule of law and a component of liberty we cannot renounce”. To renounce that principle, the court warned, would cause “profound and unnecessary damage to the Court’s legitimacy, and to the Nation’s commitment to the rule of law”. But that is precisely what the court did in letting Texas’s transparently unconstitutional law take legal effect.But far from recognizing or examining their own role in contributing to the erosion of the court’s legitimacy, the two justices turned to other precincts to assign blame. It’s the media, Thomas whined, that are “destroying our institutions” – this from a justice who dissented from the court’s refusal to hear Trump’s challenge to a Pennsylvania state court decision that extended the deadline for the receipt of mail-in ballots by three days. Thomas acknowledged that the volume of mail-ins at stake had no material bearing on the outcome of the Pennsylvania race; all the same, he was prepared – in a stunning display of either partisanship or tone-deafness – to have the supreme court, scant weeks after the 6 January insurrection, offer tacit support to Trump’s attack on the 2020 election results. And, in now blaming the media for the court’s self-inflicted wounds, Thomas is effectively echoing Trump’s toxic rhetoric about “fake news”. Who is the institution-destroyer here?Alas, Justice Coney Barrett joined Thomas in attacking the press. The media, she charged, makes decisions such as the Texas case “seem results-oriented”. It is worth noting that the justice made her remarks at the McConnell Center at the University of Louisville, with Senator Mitch McConnell, the center’s namesake, in attendance. It was McConnell, of course, who in the wake of Ruth Bader Ginsburg’s death six weeks before the 2020 election, pushed through Coney Barrett’s nomination, in transparent violation of the very justification he had offered four years earlier to deny President Obama the right to name a justice to fill a court vacancy that ultimately went to Neil Gorsuch. That McConnell’s cynical manipulation of the rules was designed to compose a court that would produce dependably conservative results appears lost on Coney Barrett. Indeed, it was her vote that was determinative in the Texas case. Had Ginsburg still been on the court, the decision would have gone 5-4 the other way. McConnell secured the results he wanted.If Coney Barrett were genuinely concerned with promoting the court’s legitimacy, she might consider resigning. Or rather, she and Gorsuch might agree to flip a coin to decide who should leave the court. If presidents do not get to replace justices in an election year, then Coney Barrett’s confirmation is illegitimate; and if presidents do get to replace, then Gorsuch’s confirmation must be illegitimate. You can’t have it both ways – not if you believe that the composition of the court should be the product of a principled process.Coney Barrett appears to willfully overlook the fact that she has been elevated to a rarefied position through a tarnished process that will taint all decisions in which her vote plays a crucial role. And just as we might hope that a person who, through no fault of their own, has come into possession of a good not rightfully theirs, would return that object, Coney Barrett and Gorsuch could do the right thing for the nation by agreeing that one of them should step down.Clearly, this isn’t going to happen. Yet it would powerfully bolster the legitimacy of a court the very composition of which smacks of illegitimacy.
      Lawrence Douglas is the author, most recently, of Will He Go? Trump and the Looming Election Meltdown in 2020. He is a contributing opinion writer for the Guardian US and teaches at Amherst College
      TopicsUS politicsOpinionUS supreme courtLaw (US)Amy Coney BarrettClarence ThomascommentReuse this content More