By William McGurn | The Wall Street Journal
In the highlights from a “Library of
Congress” interview with Clarence Thomas, the Supreme Court Justice talks about
victimhood, the confirmation process and why he writes so many opinions.
Images: AP/Getty Images Composite: Mark Kelly
Supreme Court Justice Clarence Thomas is not chief justice, but never before has he had the power and influence he has now.
For Justice Thomas, any chance he might become chief
justice has long since passed. But at 72, he is coming into his own. For
circumstances have now made it as plausible to speak of the Thomas court as the
Roberts court.
The trigger was the replacement of Justice Ruth Bader
Ginsburg with Justice Amy Coney Barrett. This move gave conservatives a 6-3
majority, depriving Chief Justice John Roberts of the ability to swing
decisions to the liberal side—unless he manages to bring Brett Kavanaugh along
with him.
This gives Justice Kavanaugh Joe Manchin-like powers over
any case in which the chief might go south on his more conservative-minded
colleagues. It’s a big change from the days when Justice Anthony Kennedy could
easily move back and forth, here siding with conservatives to strike down
speech limits in Citizens United v. FEC (2010), and there
unearthing in Obergefell v. Hodges (2015) a
constitutional right for gay couples to marry.
For a while, Chief Justice Roberts looked as though he
might become the new Anthony Kennedy. The chief pulled his own Kennedy in 2012,
even before Justice Kennedy retired, when he saved ObamaCare by ruling that the
individual mandate was a tax and thus constitutional. He has sided with the
court’s liberal wing on other cases too, such as when he blocked the Trump
administration’s bid to end the Obama-era Deferred Action for Childhood
Arrivals program. At the same time, the Roberts court has lately been shy to
take up contentious issues from abortion to gun rights.
Enter Clarence Thomas. As Jan Crawford Greenburg noted in
her 2007 book, “Supreme Conflict,” for many years Justice Thomas has been
dismissed unfairly as Antonin Scalia’s sidekick. In fact, the men weren’t only
brothers-in-arms but brothers—just listen to Justice Thomas’s tremendous eulogy for
Scalia—whose significant disagreements on issues from natural law to deference
to precedent helped each hone his own position while increasing their mutual
respect.
Among the things these two great judges shared was an
understanding that a majority opinion isn’t the only way to leave a mark. Like
Scalia—whose greatest contribution may have been his fearless solitary 1988
dissent in Morrison v. Olson on the unconstitutionality of the
independent counsel—many of Justice Thomas’s most powerful contributions
haven’t come through majority opinions. Instead, they have come through
dissents, concurrences and comments on denials of petitions to hear an appeal.
“His writings are often of the ‘emperor has no clothes’
variety where he argues that practice and Supreme Court precedent contradict the
original meaning of the Constitution,” says John Yoo, a University of
California, Berkeley, law professor who once clerked for Justice Thomas. “He
isn’t really trying to win the case that day but is instead aiming for five,
10, 20 years ahead, when the court might come to its senses.”
Today the changes on the court have left Justice Thomas
uniquely empowered. First, the new conservative majority now requires two
defections for the liberals to triumph. Second, as the associate justice with
the most seniority, it falls to Justice Thomas to assign the majority opinion
when the chief justice comes down on the dissenting side. That presents Chief
Justice Roberts with a dilemma: Since he can no longer dictate the outcome by
himself, choosing the dissenting side without Justice Kavanaugh invites a
Thomas majority opinion.
Take Dobbs v. Jackson Women’s Health Organization,
which the court recently decided to hear. It involves a Mississippi law that
would limit most abortions after 15 weeks of pregnancy. We don’t know if the
chief voted to hear the case. But even if he didn’t, he now has an incentive to
side with conservatives so he can write a majority opinion more narrow than
what Justice Thomas would likely write.
Count this as a victory for Justice Thomas. Only 2½ years
ago, he issued a tart dissent from the court’s decision not to consider another
abortion-restriction case, accusing the court of ducking its responsibility. He
called on the Roberts court to show some backbone: “Some tenuous connection to
a politically fraught issue does not justify abdicating our judicial duty. If
anything, neutrally applying the law is all the more important when political
issues are in the background.” That’s the whole reason, he wrote, the Framers
gave Supreme Court justices lifetime tenure.
He made similar remarks about the Second Amendment
becoming “a disfavored right” after the court passed on several gun cases. As
he rightly noted, this was when lower courts were flouting key Supreme Court
rulings such as District of Columbia v. Heller (2008)
and McDonald v. Chicago (2010).
Now the Supreme Court has agreed to hear a case about a
New York gun law and another about a Mississippi abortion restriction. If the
court does the right thing, it will take up one dealing with Harvard’s discrimination
against Asian-Americans.
On the Supreme Court, it’s good to be chief. But right
now it may be better to be Clarence Thomas.
https://www.wsj.com/articles/god-save-the-clarence-thomas-court-11621893168?mod=opinion_lead_pos9
