Associate Supreme Court Justice Clarence Thomas, who during his 1991 confirmation hearings charged the Senate Judiciary Committee, chaired by Joe Biden, with a “high tech lynching” has just subjected America to an 18th Century screwing. He did that in his June 23, 2022, opinion for the majority in New York State Rifle & Pistol Association v. Bruen, holding that the “concealed carry” provisions of New York’s Sullivan Law violate the Second Amendment. That Thomas opinion and his concurring opinion the next day in Dobbs, that overruled Roe v. Wade and Planned Parenthood v. Casey, were just the latest in a 30-year reign of petulant terror as retribution for those confirmation hearings. That and Thomas’ self-loathing suspicion that he benefitted from enlightened affirmative action policies that he has devoted his career to destroying.
Careful readers should be “shocked – shocked” by something implicit in what we just said. That a U.S. Senate controlled by Democrats, with its Judiciary Committee chaired by Good Soldier Joe confirmed Thomas. A Senate that knew exactly who they were seating on the high court. Before the Anita Hill fiasco, Thomas’ nomination was actively opposed by the NAACP, the Urban League and the National Organization for Women, because of his vigorous opposition to affirmative action and his presumed desire to overrule Roe. Presumed only because he lied about his predisposition at his confirmation hearings. That intention became clear soon after he was seated, in his dissent from the Court’s 1992 decision in Casey.
Thomas was rated “unqualified” by several among the 15 members of the “Standing Committee on the Federal Judiciary” of the ABA and not rated “highly qualified” by a single member. His service as Chair of the Equal Employment Opportunity Commission was charitably deemed “controversial” and to many singularly perverse because of his opposition to affirmative action. Biden and his Democratic colleagues knew how to uncover the intentions of a right-wing jurist embarked on a search and destroy mission – as they had four years earlier with Robert Bork. Unlike Thomas, Bork was otherwise “highly qualified.” But displaying the same lack of courage to back conviction and to win, that Senate Democrats have exhibited since Bork (in stark and sickening contrast to Senate Republicans) the Biden-led Judiciary Committee sent Thomas to the full Senate, not once but twice. Initially before and then again after the Hill fiasco, where with votes from 11 Democrats Thomas was confirmed to begin his reign of retribution.
During the first two decades plus Clarence wrote his constitutionally whacky opinions -often in concurrence or dissent – without asking questions to the oral advocates, who already knew precisely where his vote would land, but not necessarily what inane writing he would issue to justify it.
Those wild and crazy writs were aimed at many targets. The landmark 1965 Voting Rights Act, rational and economically coherent enforcement of the nation’s antitrust laws, controls on the $ billions of soft money poured into federal campaigns that no longer even pretend not to be in support of particular candidates and in truth are controlled by their campaigns. And two huge goals of the American right – guns in every house and hand and overrule Roe and Casey.
Those targets plus truly bizzarro constitutional constructions. While Mr. Justice Thomas admits that “Congress shall make no law respecting an establishment of religion. . .” he has opined that doesn’t mean that a state can’t do that. For examples, South Carolina, Hawaii and Rhode Island and the Plantation Provinces establishing Judaism, Russian Orthodoxy and Islam as their state religions respectively.
And of course, that view of the Constitution would also mean that none of the rights protected from federal infringement in Amendments I-VIII (like speech, press, excessive fines, unreasonable searches, double jeopardy, self-incrimination, etc.) would be protected from infringement by a state and its laws. Trial by ordeal in New Jersey courts perhaps.
At this juncture in Clarence’s own private 30-years war we arrived at the week that was. Dobbs, which was last – first. In Dobbs Thomas rejected the many assurances in the majority opinion and Kavanaugh’s concurrence that the same jurisprudence concocted to overrule Roe and Casey would not be used to overrule Obergefell (same sex marriage), Griswold (contraception-involving opposite sex married couples!) and other incidents of privacy and the right to dominion over one’s own body. Let’s give credit to Thomas for his honesty in contrast to the apparent dissembling in those reassurances.
And the day before, in his opinion for the majority in NYS Rifle & Pistol, Thomas said that the only gun regulations that can survive his Second Amendment analysis are regulations analogous to those widely in effect when the Second Amendment or the Fourteenth Amendment were enacted in 1791 or 1868. The fact that there were no AR 15s then is of no moment to Clarence. Nor does his inconsistency on Bill of Rights incorporation by the Fourteenth Amendment (disestablishment of religion is not incorporated but phony Second Amendment rights are) discomfort the Thomas mind. Nor does the “Big Enchilada” bother them (to borrow a favorite Republican phrase). Thomas and his strict constructionist colleagues’ refuse to recognize that both strict constructionist and originalist interpretations would require them to enforce the plain and contemporaneous meaning of the Second Amendment; that the right to keep and bear arms (an 18th Century military term) is in service of a state’s Militia.: The words of the Second Amendment:
A well-regulated Militia being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.
During the 1991 Thomas hearings, we were transfixed by both their drama and importance. We were stunned by the audacity of Bush 41 offering Clarence as a successor to Thurgood Marshall and certain that the Democrats would use their power to prevent such an abomination. During the Hill fiasco part of those hearings Thomas, in addition to the infamous “high tech lynching” charge, dared the Senate to reject him explicitly and implicitly warned that he had and would use his life tenure on the D.C. Circuit Court to exact retribution. The Democrats have given him 30 years to do that on the High Court. Now is the time to use Mr. Justice Thomas’s clearly unethical conduct relative to his wife’s insurrectionist activities to impeach and attempt his removal in a trial before the United States Senate.