Courts

Clarence Thomas Celebrates 30 Years Of Eroding Basic Constitutional Rights

There is nothing to celebrate when any justice is around this long.

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(Photo by Aude Guerrucci-Pool/Getty Images)

Today marks the 30th anniversary of the Senate voting 52-48 to install Clarence Thomas on the Supreme Court. Milestones like these are all about looking back and appreciating the journey, and Justice Thomas certainly had an unlikely journey to this job. People may not remember this, but in 1988, George H.W. Bush campaigned on the evils of racial quotas echoing the sentiment of Reagan’s EEOC Chair — a young Clarence Thomas — who said that any form of affirmative action amounted to “a narcotic of dependency.” But when Justice Thurgood Marshall resigned, against all odds, the White House dug deep and found the only Black Republican on the appellate bench. An almost astronomical coincidence.

After a contentious nomination process that saw law professor Anita Hill recount episodes of sexual harassment she had to deal with from Thomas, he returned to the Judiciary Committee and offered a rage-fueled denial to salvage his nomination. In a sense, this proved to be Thomas’s most significant legacy since his tantrum in the face of sexual misconduct charges became the blueprint for Brett Kavanaugh. When in doubt, the misogyny well runs deep.

On the Court, Thomas slotted into a standard arch-conservative role, championing doctrines like originalism and textualism and then jettisoning those deeply held principles any time they failed to produce the policy preference of the contemporary Republican Party. Like in Parents Involved v. Seattle Schools, when Thomas refused to even nod at the original public meaning of the 14th Amendment in deriding school integration as “hypersensitivity to elite sensibilities.” In Fisher v. University of Texas at Austin, Thomas completely traded originalism in for wacky hyperbole in comparing affirmative action to slavery. Which isn’t to say he won’t ride originalism to the hilt when it backs his agenda. On that score, he’s so committed that his closest ally on the Supreme Court publicly called him a nut.

But whether he’s flipped the originalism switch on or off for any specific case, like all self-proclaimed originalists, Thomas is a political operative cosplaying as a jurist. Grandiose judicial philosophies are part of the façade, but when it’s down to brass tacks any justification that gets from point A to point GOP will do. John Marshall said corporations weren’t people? Well… so much for the “original” part of originalism! The 30-year Thomas legacy is about propping up police, rubber stamping death penalties, marginalizing the LGBTQ community, hollowing out reproductive freedom, and — most importantly to him — gutting the civil rights protections from voting rights to affirmative action.

Which brings us back to the real problem with anniversaries like this: 30 years is beyond too long for anyone to sit on the Supreme Court. In a country that fancies itself a democracy, core facets of the constitutional compact are left to the whims of an unelected, life-tenured aristocracy. While we ponder what the Framers might have thought, it’s worth considering how flabbergasted they would be to learn that the country governs itself by spinning the mortality roulette wheel and handing the spoils to the president able to squeeze the most (and youngest) people onto the bench.

Thomas shouldn’t celebrate today. He should leave. So should Breyer. Roberts and Alito are on the cusp as well. It’s difficult to square defending the Constitution — under any interpretive theory — with the “indispensable man” (or woman, in the case of RBG) mindset that these justices adopt. Even if you think you’re faithfully interpreting the law, at the point you become a dead hand representative of a politician that left office when MTV still played music, you’ve compromised the integrity of the Court’s mission.

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HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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