08:17, July 02 195 0 theguardian.com

2018-07-02 08:17:05
Justice Clarence Thomas leading the US supreme court? A scary thought

He is the most silent Supreme Court Justice. He has written almost no landmark decisions. Perhaps because of this, his extreme, right-wing jurisprudence has not been seen as very influential, unlike that of his ideological clone, the late Antonin Scalia or the Court’s newcomer, Neil Gorsuch. But with the retirement of Anthony Kennedy, Clarence Thomas is now the most senior conservative and quite possibly, the most important.

By most measures he is, since Scalia’s death, the furthest right on the Court’s ideological spectrum. Already, this most recent court term has been a debacle for the liberal justices who, according to Adam Liptak of The New York Times, largely failed to peel off Kennedy to form a majority in the major cases.

So, unthinkably horrible as it is, we may very well be entering a new era, the era of the Thomas Court.

Already there is much speculation that Donald Trump’s nominee to replace Kennedy will be, if confirmed, the decisive vote to overturn Roe v Wade, the decision legalizing a woman’s right to have an abortion. Trump is on record saying he intends to nominate justices who oppose Roe. Clarence Thomas is the lone surviving Justice who voted in the 5-4 minority in Casey v Planned Parenthood, the landmark 1992 decision that upheld Roe. In a joint dissent, the conservative minority, including Thomas, said in Casey: “We believe that Roe was wrongly decided, and that it can and should be overruled consistently with our traditional approach to stare decisis in constitutional cases.” So, it would be perfectly plausible that, if and when a new, even more conservative majority on the Court decides to overturn Roe, Thomas would be chosen to write the notorious decision.

This would be the ultimate irony, given that one of the epic lies Thomas told during his 1991 confirmation hearing was that he had never discussed Roe v Wade. In subsequent books and articles, various people have said they heard him express his opposition to abortion before he joined the Court.

Already, there are signs of Thomas’ growing influence. The Judicial Crisis Network, a right-wing organization, is already spending $1m to support whomever emerges as Trump’s new nominee. That organization is headed by Carrie Severino, a former Thomas law clerk. Her group spent millions to confirm Justices Neil Gorsuch, Samuel Alito and John Roberts. The group is closely allied with The Federalist Society, which has screened virtually all of the Trump judicial appointments.

JCN operates as a dark money pit and does not disclose its donors. According to tax filings, another right-wing dark money group, The Wellspring Committee, has given JCN nearly $10m through 2014. Wellspring, in turn, is run by a couple known to be close to Justice Thomas and his wife, Ginni, who has been active in various right-wing groups and causes. It is likely that Ginni Thomas will be a player, visible or not, in any upcoming Supreme Court confirmation battle.

Where once he spoke only before rather obscure and reliably friendly conservative audiences, Thomas has been more public of late. According to Slate, he appeared in April with Kyle Kashuv, a Parkland survivor who opposes gun control at an event in Washington, DC, where according to Kashuv, the justice told him the Second Amendment “won’t be touched.” The previous November, Thomas gave an interview to Fox’s Laura Ingraham, the right wing host who is another one of his former law clerks. In February, according to Slate:

“the justice issued his Trumpiest opinion yet, condemning his colleagues for refusing to review a lower court’s decision affirming the constitutionality of California’s “cooling-off” period for gun purchases. (These waiting periods have been shown to save lives.) He assailed the court for having “more favored rights” than the Second Amendment, overturning laws restricting abortion, free speech, and personal privacy while ignoring gun restrictions. He also rebuked the lower court for protecting the free expression of nude dancers and the marriage rights of same-sex couples. His dissent was an embarrassing, discursive tirade that might as well have been ghostwritten by Dana Loesch; no other justice joined it.”

It’s been too easy to dismiss Thomas as a right-wing crank who doesn’t matter much. That’s about to change. By inheriting the mantle from Kennedy as the longest-serving conservative on the Court, his stature inherently grows. On a Thomas Court, John Roberts could become the swing, more moderate vote in certain cases. This is a measure of how far to the right the Court has titled.

In the era of #MeToo, it’s also beyond galling to see the man who sexually harassed Anita Hill and lied his way to confirmation in 1991 become so influential.

But this is exactly what President Trump has undoubtedly dreamed of.

And a Thomas Court is exactly what people who truly value the Constitution and human rights must fight to make sure we never see.

  • Jill Abramson is a Guardian US columnist

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