Clarence Thomas and his court brethren may have picked the wrong fight. karma bides its time…
Reading Justice Thomas’ dissent in Dobbs one could sense the venom, His words hissed out their call to right decades of liberal social reengineering. The six radical members of the “brotherhood” basing their decision to overturn Roe v Wade, reached back into their medieval religious dogma to bring back into mode a legal chastity belt designed to control the reproductive rights of women. Perhaps Thomas and his brethren were reacting to their own experiences as younger men. A good confession cured the male libido as we can be sure the ultra-Catholic Kavanaugh and Thomas could attest. Surely brother Alito fended off similar “sins of the flesh.” One could hear the defense of the theocrats who view women and their babies as their right (and a rite of passage) in Alito’s twisted inquisition as he lectures us about why women seek abortion rights:
“..because getting an abortion is generally “unplanned activity,” and “reproductive planning could take virtually immediate account of any sudden restoration of state authority to ban abortions.”505 U. S., at 856. Instead, the opinion perceived a more intangibleform of reliance, namely, that “people [had] organized intimate relationships and made choices that define their views of themselves andtheir places in society . . . in reliance on the availability of abortion inthe event that contraception should fail”…”
Thomas was married (his second marriage) by the time he was questioned before the panel that would nominate him to his seat on the Supreme Court. He was selected by George H. W. Bush as the replacement for retiring Thurgood Marshall whose stature on the court was historic. He was the first Black Justice appointed more than a decade after his successful argument before the court in the groundbreaking Brown v. Board of Education case. Brown overturned the 1896 Plessy standard which established “separate but equal” as a beard that would provide legal cover for Jim Crow laws and racial desegregation. Marshall was a giant in the movement to gain Civil Rights for Blacks long before he appeared before the court to argue Brown. It was not lost on Marshall that it was the 1896 Supreme Court ruling in Plessy that laid the precedent for school segregation and inspired the burgeoning post-war Civil Rights movement:
“The duty of enforcing, the duty of following the Fourteenth Amendment, is placed upon the states. The duty of enforcing the Fourteenth Amendment is placed upon this Court, and the argument that they make over and over again to my mind is the same type of argument they charge us with making, the same argument Charles Sumner made. Possibly so.
And we hereby charge them with making the same argument that was made before the Civil War, the same argument that was made during the period between the ratification of the Fourteenth Amendment and the Plessy v. Ferguson case.”
— -Marshall’s argument before the Supreme Court, 1953
When Marshall retired due to failing health in 1991, Bush selected Marshall’s diametric opposite. Clarence Thomas, while sharing Marshall’s race, had little in common with his judicial temperament. Republicans knew this and believed that, in this case, they had painted the Democratically controlled Judiciary Committee into a corner. For them to argue against Thomas would open Dems to a charge of hypocrisy. It worked, to a point, until Anita Faye Hill, an attorney who served as an assistant to
Thomas at both the Department of Education and EEOC exposed his randy past. At the time of his nomination, Thomas was serving as a Circuit Court Judge for less than a year, and so Hill’s interview with the FBI regarding her time with him was an important part of his background check. Hill had indicated when she was interviewed that Thomas had sexually harassed her while they had worked together. Her testimony before the Judiciary Committee was explosive and placed Thomas’ nomination in jeopardy. Thomas reacted much like Brett Kavanaugh did years later by accusing Hill of lying. History will always reflect on the decision of the Committee Chairman, Joe Biden, to refuse to call for the testimony of four women who were prepared to support Hill’s testimony with their own experiences. Ah, women! It seemed that the men of the Senate understood the embattled candidate even if they believed Hill. Thomas later called Hill’s testimony a “high-tech lynching for uppity blacks” brought by Democratic liberals, even though his accuser agreed to take a polygraph test (she passed) while Thomas refused the same.
For most of his tenure on the Court Thomas was a cipher. He asked few questions during hearings before the Court and was hardly considered a “player” by either Rehnquist or Roberts when they assigned cases:
Neither Chief Justice William Rehnquist, who presided over Thomas’s first fourteen years on the Court, nor Chief Justice John G. Roberts, Jr., who has run the court for the past eleven, ever assigned Thomas a landmark opinion for the Court.Thomas’s admirerscite such opinions as Good News Club v. Milford Central School, in 2001, which found that a public school had to allow a religious group to meet on campus after hours. That was indeed a conservative victory, but hardly comparable in magnitude to others handed down during his tenure. The truth is that Rehnquist and Roberts never trusted Thomas to write an opinion in a big case that could command a majority of even his conservative colleagues.
Thomas was and is a backbencher. His notoriety in recent cases, notably his lone dissent in the Court’s 8–1 decision that denied Trump’s bid to block the release of presidential records and his Dobbs concurrence, are exceptions. In the first case, Thomas neglected to recuse himself in a case in which his wife’s communications with White House Chief of Staff, Mark Meadows, were front and center. Dobbs, on the other hand, appears to be a case in which Thomas attempts to exorcise his old nemesis of the past. Part of Thomas’ political DNA has always been to side with the most conservative theories of governance-even those that supported equality and social justice for blacks. He has always been a critic of affirmative action, for instance, calling it a program for whites, despite being admitted to Yale Law School under its racial preference plan:
“Under the program, which was adopted in 1971, the year Judge Thomas applied, blacks and some Hispanic applicants were evaluated differently from whites, the officials said. Nonetheless, they were not admitted unless they met standards devised to predict they could succeed at the highly competitive school.”
Thomas seems to be a man who is embittered by his shortcomings, trying to articulate an argument that would redefine his recalcitrance to democratic norms won by others of his race at great cost. He is the Black Contrarian espousing reactionary positions- perhaps to expel his inner demons.
Anita Hill has been renting space within his head since that day when her testimony revealed his tawdry perversions. The Dobbs opinion was written in spite. It is as if it was his revenge against the one woman who stood her ground against great opposition in 1991. His extrapolation into other decisions of more recent Courts, and Obergefell (except were simply Thomas asserting what Hill had accused him of all those many years ago- male dominance and white supremacy. His opinions over the years have been focused on the most radical readings of originalist thought-a reading that supported enslavement and denial of rights to women, people of color, immigrants, and the gay community. He is a bigot whose views on race, religion, guns, gender equality, and political power are less original in thought than antediluvian:
Respondents’ argument that this history does not matter flies in the face of the standard the Court has applied in determining whether an asserted right that is nowhere mentioned in the Constitution is nevertheless protected by the Fourteenth Amendment. The Solicitor General repeats Roe’s claim that it is “doubtful . . . abortion was ever firmly established as a common-law crime even with respect to the destruction of a quick fetus,” 410 U. S., at 136, but the great common-law authorities-Bracton, Coke, Hale, and Blackstone-all wrote that a post-quickening abortion was a crime. Moreover, many authorities asserted that even a pre-quickening abortion was “unlawful” and that, as a result, an abortionist was guilty of murder if the woman died from the attempt. The Solicitor General suggests that history supports an abortion right because of the common law’s failure to criminalize abortion before quickening, but the insistence on quickening was not universal…
Relying on “Bracton, Coke, Hale, and Blackstone” in an era in which medical science has taken precedence over pseudo-philosophic debate, is only appropriate if the repercussions of the Court’s male-centric reading of biological functions were applied equally to men. In the case of the exceptions regarding rape, the health of the mother, or viability of the fetus which are ignored in service to 17th-century medical terminology like quickening, there is no consideration that males have a stake that is either equal or in the case of rape, dominant in placing the mother’s life in jeopardy. That didn’t matter to the 6 Republican Justices who revel in their vengeance toward women. I am sure that Clarence Thomas had his old nemesis in mind as he wrote. Getting even is always problematic. It is a little like tempting the gods. Washington Post editorialist, and Pulitzer Prize winner, Meg Greenfield, often got the last word in a male-dominated industry. One quip seems particularly appropriate here, given Clarence Thomas’ ongoing duel with his conscience:
Talking too much, too soon and with too much self-satisfaction has always seemed to me a sure way to court disaster. The forces of retribution are always listening. They never sleep.
Thomas and his friends are in the business of getting even, but as Greenfield wrote, there is a price to pay. Anita Hill will always be a quiet reminder to the Justice of who he really is. She owns that special place between his ears, that small slice of his soul he thought he could hide. His decision to support Alito’s poorly cited and historically tortured opinion is another example of Thomas wanting desperately to feign relevance, just as he pretended to be judicial.
The Court’s ruling in Dobbs is a denial of modernity and a nod to the notion that while men may share a burden of responsibility in a pregnancy, women should bear all the risks. In cases of rape, the health of the mother, or the viability of the fetus, this court has decided to double down on the risks. Men share no equal burden, and the decision by the justices ensures that the state has asserted the dominance of men over women. It is a decision that denies reality and cannot stand. The Justices have plumbed the past for their ruling — -and have decided we all should live in it. I’m betting that women will decide otherwise.
Originally published at https://www.dailykos.com on July 20, 2022.