Poor Justice Clarence Thomas. First Anita Hill credibly accuses him of sexual harassment during his Senate Judiciary Supreme Court hearings. Then his wife Ginni calls his integrity into question owing to her role in attempts to overturn the 2020 presidential election, prompting calls for his recusal from January 6 cases.
We don’t know if Thomas experienced these events as blows to his self-image. But we do know about his propensity for seemingly self-serving judicial acts, which may or may not compensate for any such injury.
We know that the calls for Thomas’s recusal fell on deaf ears. And from Thomas’s concurring Dobbs opinion we know he’s now gunning for landmark Court decisions that granted “substantive due process” rights on same-sex marriage/relationships and contraception. Because these rights aren’t enumerated in the Constitution, Thomas deems them undeserving of judicial protections. Thomas considers “any substantive due process decision . . . ‘demonstrably erroneous,’” thereby creating “a duty to ‘correct the error’ established in those precedents.”
Adopting an originalist interpretive framework, Thomas rejects adding new rights (substance) to those named in the Fourteenth Amendment—life, liberty, property. Hence he targeted not only Roe but also now targets rulings such as Griswold v. Connecticut, which overturned a Connecticut law criminalizing contraception, and Obergefell v. Hodges, which overturned laws in Ohio, Michigan, Kentucky, and Tennessee banning same-sex marriage.
Thomas noted the “disastrous ends” to which substantive due process rulings likely lead: “In Dred Scott v. Sandford . . . the Court invoked . . . substantive due process to announce that Congress was powerless to emancipate slaves brought into the federal territories.”
Apparently, for Thomas, because some substantive due process rulings are wrong, we shouldn’t have any such rulings. Fearing that “extraconstitutional values” — those that transcend what the Constitution’s Framers intended — will increase our rights wrongly, Thomas wrote that “the Court divines new rights in line with ‘its own extraconstitutional value preferences.’” And this for him wrongly “nullifies state laws that do not align with the judicially created guarantees.”
Thomas cloaks his extremism in the supposedly neutral fabric of his judicial robes. But his preferred originalism isn’t free of so-called “extraconstitutional value preferences,” as there is no interpretive framework itself in the Constitution—chosen frameworks (like originalism and non-originalism/pragmatism ) reflect justices’ values beyond the Constitution’s.
The self-serving bias I find in Thomas’s decisions seems self-evident. By “self-serving” I mean serving one’s own interests when they’re at odds with the interests of the American people — an overwhelming majority of whom disapprove of overturning Roe.
Thomas’s omission of Loving v. Virginia from other landmark decisions he targeted seems hypocritically self-serving. As actor Samuel Jackson tweeted, “How’s Uncle Clarence feeling about overturning Loving v Virginia??!!” — “the civil rights case that deemed interracial marriage bans unconstitutional. Thomas, a Black man, is married to Ginni Thomas, who is White.”
Thomas’s use of the Dred Scott decision to illustrate how extraconstitutional values can harm has some merit. Yet in speaking of “neutral legal analysis,” he apparently can’t accept that judicial decisions always entail values of all sorts, and whether decisions help or harm depends on the real-life context into which they’re dropped.
Regarding reality, former (non-originalist/pragmatist) Chief Judge of the Seventh Circuit U.S. Court of Appeals Richard Posner heretofore wrote, “The pragmatist places the consequence of his decision in the foreground.” Bravo! He also wrote that he was reassured “to think that the courts stand between us and legislative tyranny.” But even with reassurances about abortion rights from Maine Governor Janet Mills, among other Democratic Governors, Thomas’s tyrannical threats are worrisome.
Good decisions call for judicious judgments about the common good, which Thomas and his conservative compatriots haven’t demonstrated much of lately—for example, overturning Maine’s ban on aid to religious schools and upholding a coach’s right to pray publicly on the playing field suggest that six conservative Christian justices might not mind tainting our original separation-of-church-and state-democracy with anti-originalist theocratic rulings.
The Supreme Court, at a well-deserved 25% approval rating, must itself be interpreted in light of the conservative justices’ decisions. Justices self-selected interpretive lenses don’t justify decisions that advance their own values when those values remove precedented rights from women and LGBTQ people, for starters.
Our justices must serve the American people, not themselves. Because, in the view of many, this isn’t happening. I agree with those who push for an expanded court. President Biden, who in chairing Thomas’s Senate Judiciary Committee hearings green-lighted his entry into this elite, originally White boys’ club, must make a Court correction.
Barbara S. Held is a Barry N. Wish Professor of Psychology and Social Studies Emerita at Bowdoin College.
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