During their confirmation hearings, Supreme Court nominees are routinely asked what they think about this issue or that case, and they routinely answer that it would be inappropriate for them to comment since, if confirmed to the Court, they might have to rule on that very question. Justice Thomas, in his confirmation hearing, sometimes followed a different strategy. When asked his opinion of Roe v Wade, he said that he couldn't comment—not because it would be inappropriate, but because he had no opinion at all. According to him, he'd never thought about it. He was then confirmed, and as a fiftyish man soon had to form his first ever opinion about the Supreme Court's abortion jurisprudence. It turns out that, after careful study, he regards with contempt the notion that there is a constitutional right to abortion. In the recent Dobbs case, reversing Roe and Casey, he was not content, for example, just to join the majority opinion. He said in a separate concurring opinion that the majority was correct to reverse the court's previous abortion decisions, but he wanted to go on record stating what he thinks should happen next. Here's the passage, from pages 118 and 119 in the Court's collection of the different opinions in the case, here:
The Court today declines to disturb substantive due process jurisprudence generally or the doctrine's application in other, specific contexts. Cases like Griswold v Connecticut (right of married persons to obtain contraceptives), Lawrence v Texas (right to engage in private, consensual sex acts), and Obergefell v Hodges (right to same sex marriage), are not at issue. . . . For that reason, in future cases, we should reconsider all of this Court's substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is "demonstrably erroneous," we have a duty to "correct the error" established in those precedents.
I've omitted the case citations in the text, but the phrases "demonstrably erroneous" and "correct the error" are in quotation marks because Justice Thomas is referring to previous opinions of his. It's pretty clear that the rule against indicating what you think about a question that might come before the Supreme Court evaporates once you've been confirmed to a lifetime appointment. Justice Thomas is saying, very explicitly, that he thinks the legal reasoning underlying these other precedents is "demonstrably erroneous" and that the cases should be reconsidered, in the manner of Roe and Casey. He's advertising for business from the kind of right-wing interest groups his wife often represents in her lobbying business. "Here's what I think; bring some cases, appeal them up to the Supreme Court, I'll take your side." Is there another way to understand what he's saying?
Conservatives complain about "the swamp" in Washington but there is no swampier institution than their own Supreme Court. Its composition is determined by an actuarial lottery augmented by political machinations. The confirmation hearings are absurd charades in which the nominees lie and dissemble and a majority of senators pretend to believe them—although, I have to admit, some of the senators are so stupid that they may actually believe them. Once on the Court for life, the justices step out of their threadbare disguises and commence ruling as their political sponsors (and the rest of the sentient population) knew they would. Occasionally one of the justices expresses puzzlement, or annoyance, over why so many Americans should think they're just partisan hacks in robes. When Justice Amy Coney Barrett took her turn, Mitch McConnell was standing beside her. Maybe they want to rub our faces in it, or maybe they're so invested in the scam as to be rendered clueless about how it looks to honest people. I don't know. Barrett and two of her colleagues—that's three out of the nine, and half of the right-wing super-majority—were appointed to the Court by a traitorous coup plotter, but it's doubtful he'll ever go to prison, or even be indicted, and nothing will happen to them in any event: the fruit of the rotten tree will be lording it over us for a couple generations, assuming the country holds together that long.
Comments