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In an interview and speech Friday to members of the Hoover Institution and other conservative groups, Supreme Court Justice Clarence Thomas errantly pinned the loss of public confidence in the Supreme Court on the leak this month of Justice Samuel Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization overturning Roe v. Wade.
But he should have also looked elsewhere, including at himself.
Comparing the leak of the draft opinion to a marital betrayal, Thomas said that trust and belief in the Supreme Court “is gone forever.”
“And when you lose that trust,” he continued, “it changes the institution fundamentally. You begin to look over your shoulder. It’s like kind of an infidelity, that you can explain it, but you can’t undo it.”
Drop in approval rating for Supreme Court
Thomas’ lamentations reveal a remarkable lack of engagement with the serious and pressing problems that beset him and the Supreme Court, combined with a dangerous dose of self-deception.
The Supreme Court has indeed lost legitimacy for growing numbers of Americans. A recent Monmouth University poll tracks a drop from 42% approval in March to 38% public approval rating this month. But the steep decline started well before the leak: Approval stood at 49% in March 2016.
In addition, Thomas ignored the fact that more than 6 in 10 Americans want Roe to stay. That broad support, confirmed in other polls, strongly suggests that declining trust in the Supreme Court this month did not result from the fact that a leak occurred.
It has much more to do with what got leaked: A Dobbs draft opinion tossing the precedent of Roe overboard like an empty can of Coke from a speedboat on a summer lake.
Empty and misleading statements
The decision appears to be coming with the apparent support of Justices Neil Gorsuch and Brett Kavanaugh. Gorsuch swore during his nomination hearings that Roe was the accepted "law of the land." And then Kavanaugh commented in his hearing that Roe v. Wade was "settled as precedent." Both deceptively implied that they would not overturn it.
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Justice Thomas did not entertain the possibility that such empty and misleading statements contribute to the public’s drooping confidence in the court.
Nor did he discuss the fact that the Supreme Court’s readiness to enshrine personal anti-abortion views makes the justices look – no matter how much Justice Amy Coney Barrett argues the opposite in a speech at the McConnell Center at the University of Louisville last September – like "a bunch of partisan hacks."
In Justice Barrett’s case, recall that in October 2020, Senate Republican leader Mitch McConnell rammed through her nomination right before the November election. Such two-faced action came after denying Judge Merrick Garland even a hearing in March 2016 because it was too close to that November’s election. That surely undermined confidence in the radical court majority.
Even more to the point, if Justice Thomas were to look in the mirror, he would see a justice whose behavior on and off the bench also erodes confidence in the Supreme Court.
Among other things, Thomas regularly trashes precedents that conflict with his agenda, weakens democracy, acts like a partisan himself and refuses to recuse himself in cases in which his wife's political activities create clear conflicts of interest.
What's driving the distrust?
As to precedent, Thomas has long disdained the idea that it should bind the Supreme Court. He favors an approach to judging that places little stock in what other judges say or decide. “In our constitutional structure,” Thomas has argued, “our rule of upholding the law’s original meaning is reason enough to correct course.”
As to his commitment to democracy, Thomas eagerly has helped gut the 1965 Voting Rights Act and joined his conservative colleagues in allowing partisan gerrymandering to withstand constitutional challenge.
As to personal partisanship, Friday's speech threw red meat to Thomas' conservative audience. He openly praised the civility of conservative activists and officials and expressed contempt for what he described as character assassination and “temper tantrums” by left-wing activists.
Last, but far from least, are the ethical questions. Justice Thomas did not recuse himself in the Supreme Court’s 8-1 decision earlier this year to allow disclosure of Trump White House’s documents to the House committee investigating the invasion of the U.S. Capitol on Jan. 6, 2021. He cast the sole dissenting vote in that case even though his wife was active in supporting Donald Trump’s bogus claims about election fraud.
She had sent many post-election texts to Trump Chief of Staff Mark Meadows sharing conspiracy theories about the 2020 election, according to copies of the messages obtained by The Washington Post and CBS News.
Thomas’ failure to recuse in that case brings to mind Justice Sonia Sotomayor’s poignant question at the Dobbs oral argument in December: “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?”
Unlike every other federal court, the Supreme Court is not subject to a code of professional conduct. The dereliction of ethical responsibility in refusing to adopt one also went unmentioned.
Instead of addressing real problems, Justice Thomas joined many Republican politicians in treating the leak of the Alito draft as the prime cause of the Supreme Court’s plummeting public trust.
Legitimacy requires accountability. Only if Thomas and his conservative colleagues own up to the real damage done by their behavior and their decisions can the Supreme Court avoid the fate that the justice foretold and have any chance of addressing what ails it.
Austin Sarat, the William Nelson Cromwell professor of jurisprudence and political science at Amherst College, is author of "Lethal Injection and the False Promise of Humane Execution." Dennis Aftergut, a former federal prosecutor and Supreme Court advocate, is now counsel to Lawyers Defending American Democracy.
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This article originally appeared on USA TODAY: Justice Clarence Thomas on Supreme Court abortion draft opinion leak