Saturday, May 28, 2022

Justice Thomas's Greatest Hits

 By Eric Segall

Unless you have been living under a rock, not a terrible idea these days, you have probably read about Justice Thomas's wife trying to overthrow the results of a free and fair election while Justice Thomas has not recused himself in a case involving that election, an obvious breach of judicial ethics. But as I wrote in 2012, Justice Thomas having such a lapse of judgment should not be surprising, as anyone expecting him to do the right thing is being foolish, unless that thing helps the Republican Party. 

Justice Thomas may have a warm smile and an infectious laugh but both his character and his legal opinions leave a lot to be desired. Here are his ten greatest hits in no particular order (and please notice I am leaving out Anita Hill's allegations but not because I don't believe her).

1) Justice Thomas has made numerous public appearances for the Heritage Foundation, a far right activist group, without disclosing that his wife had been a paid consultant for Heritage for years. 

In related news, Ginny Thomas was working for Heritage in 2000 trying to get folks placed in the upcoming Bush Administration while Justice Thomas was deciding the election for Bush in Bush v. Gore. 

Sorry, but I have never just "gotten over it," as the late Justice Scalia used to tell his many audiences.

2) According to that flaming liberal law professor Jonathan Turley, The Ethics in Government Act of 1978 requires federal officials, including Supreme Court justices, to disclose their spouse’s income. On the appropriate section of his 2003 to 2009 disclosure forms, however, Justice Thomas checked the box for “none.” In reality, according to Turley, Ginny Thomas was paid over $600,000 by Heritage from 2003-2007, and was paid by another conservative group in 2009. 

In related news, when this issue became public, Justice Thomas did not deny the problem and simply said that he “inadvertently omitted [his wife's income] due to a misunderstanding of the filing instructions.” He then amended 13 years of disclosure forms.

In other related news, Thomas did report Ginny's income on his disclosure forms from 1992-1996.

3) While Ginny Thomas was e-mailing Arizona legislators urging them to overthrow the 2020 election and appoint their own electors, Justice Thomas was advocating a legal rule, the independent state legislature doctrine, that would give state legislatures complete control over the electoral college count even if state constitutions give state supreme courts the final say. 

In related news, I am terrified about the 2024 election.

4) Although Supreme Court Justices should (obviously) not be involved in fundraising, Justice Thomas, according to the New York Times, helped raise money for a museum that a wealthy Republican friend wanted to open in Pin Point Georgia.

In related news, that museum was going to house several exhibits honoring Justice Thomas.

5) Justice Thomas (along with Justice Scalia) spent several all-expenses-paid cozy weekends in the mid-late 2000's at Koch Brothers retreats (read fundraisers) at fancy resorts in California.

In related news, the Koch Brothers (one has passed) had and have important interests before the Court.

6) Justice Thomas has suggested that Gideon v. Wainwright should be overruled because the Constitution only guarantees a criminal defendant a lawyer if he can pay for one. 

In related news, according to one account, Thomas has suggested overruling approximately 250 other Supreme Court cases.

7) Speaking of overturning precedent, Justice Thomas would reverse every case finding an establishment clause violation by the states on the basis that, unlike almost all of the rest of the Bill of the Rights, the establishment clause simply does not apply to the states through the due process clause of the 14th Amendment or the privileges or immunities clause because it is allegedly a structural provision (but of course so was much of the Bill of Rights as an original matter). Thus, Georgia could declare itself a Christian State and use taxpayer money to support the salaries of ministers and priests who operate sectarian schools under Thomas's view of the Constitution. 

In related news. Justice Thomas also does not think that the Second Amendment applies to the states through the due process clause, but unlike the establishment clause, the Second Amendment would apply  to the states through the privileges or immunities clause. Why? The answer has everything to do with the Republican Party.

8) Justice Thomas believes that no one under 18 has any free speech rights, at all--only their parents can assert such rights.

In related news, I'm glad Justice Thomas isn't a teacher.

9) Justice Thomas has accused university administrators and faculty who are in favor of affirmative action so as to better diversify their campuses of having the same motives as segregationists and slaveholders. Really.

In related news, see number 10 below.

10) Justice Thomas has voted to strike down every affirmative action law he has ever passed on based on a principle of "color-blindness" that is nowhere found in the Constitution's text and is unjustifiable as a matter of original meaning. Yet, Thomas preaches constantly about limiting constitutional interpretation to text and history.

In related news, not just Justice Thomas' affirmative action opinions but also his free speech for adults, free exercise, federalism, and separation of powers jurisprudence is living constitutionalism on steroids. Originalism has almost nothing to do with it.