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U.S. Supreme Court,
Ethics/Professional Responsibility

May 25, 2022

Why now does it seem like the fall of SCOTUS?

The further irony here is the historical conduct of Thomas as a member of this bench: Maintaining a low public profile, almost to the extent of being a “fly on the wall” rather than stepping up front to orally assert himself and his views. All bets are now off.

A. Marco Turk

Emeritus Professor, CSU Dominguez Hills

Email: amarcoturk.commentary@gmail.com

A. Marco Turk is a contributing writer, professor emeritus and former director of the Negotiation, Conflict Resolution and Peacebuilding program at CSU Dominguez Hills, and currently adjunct professor of law, Straus Institute for Dispute Resolution, Pepperdine University Caruso School of Law.

In an unsuccessful attempt to assist overturning the 2020 presidential election, Virginia (Ginni) Thomas, wife of SCOTUS Associate Justice Clarence Thomas, urged Arizona GOP lawmakers to use their "Constitutional power and authority" to join the effort to "protect the integrity of our elections" and choose their own slate of electors.

The irony of her justification was: "Never before in our nation's history have our elections been so threatened by fraud and unconstitutional procedures." She might look in the mirror.

In defense of her actions, Ms. Thomas has explained that she and her husband "keep their work separate." In turn, he has called out Chief Justice John Roberts as SCOTUS moves ever closer to overturning Roe v. Wade, the word being that Roberts is attempting to try a more moderate approach to what Thomas and the other like-minded justices are trying to ram through.

Roberts and Thomas appear to be engaged in an historic struggle of epic proportions over a current abortion case (Dobbs v. Jackson Women's Health Organization) that could set Roe on its heels, obliterating the case nationwide and dragging the image of the Court through the mud of controversy, further diminishing its respect in the public eye.

We are witnessing remarks suggesting Thomas' new antagonism towards Roberts is emphasizing the uncertainty regarding the ultimate ruling in Dobbs. The institutional approach practiced by Roberts makes him the one justice who might generate a compromise opinion that stops short of completely overturning Roe, at least for the time being. That would prevent Thomas from achieving his long-term goal of obliterating Roe, enabling Roberts to continue exercising his prerogative as chief justice and retain control in the management of his court as he sees fit, albeit divided.

The further irony here is the historical conduct of Thomas as a member of this bench: Maintaining a low public profile, almost to the extent of being a "fly on the wall" rather than stepping up front to orally assert himself and his views. All bets are now off.

My initial startling discovery of the "former" Thomas, when I participated as a sponsor in the induction ceremony for new admittees to practice before SCOTUS, was far different.

As a member of the SCOTUS Bar, I was present to move the admission of a close friend to practice before the Court. Astounded to observe Thomas appearing almost as if he were asleep, there in his black robe with eyes pointed downward, I experienced my first and last appearance before the Court. Roberts, on the other hand, was giving me a welcoming smile and fully engaged in the process as I presented my friend and moved her admission to practice before the Court.

It was not until perhaps the arrival of Neil Gorsuch years later, but definitely with the addition of Brett Kavanaugh and Amy Coney Barrett, that Thomas seemed to awaken and participate, asserting himself, leading to the now open conflict with Roberts.

Historically, SCOTUS has been the "center and heartbeat" of our judicial branch of government. We expect those who occupy its nine chairs constituting that bench to be thoroughly familiar with the details of our Constitution and its interrelationship with our citizens, without prejudice or regard for their own personal politics and agendas.

Notwithstanding the best laid plans, on more than one occasion over the years SCOTUS has generated strong resistance from certain segments of our population. Irrespective of that periodic rebellion, SCOTUS has consistently resolved the issues before it, even if not always popular.

The work by the historically interchangeable individuals, who have occupied those nine seats over the years since its creation, has represented a variety of the most history-changing moments since the founding of our democracy.

Thomas has decried, "we are in danger of destroying the institutions... required for a free society." Yet, it appears he has joined in and led the efforts of Alito, Gorsuch, Kavanaugh, and Coney-Barrett to take an active part in such destruction. This as they move to use SCOTUS to achieve their own goals with prejudice and in pursuit of their own politics.

Sadly, it has been reported by various polls that Americans' trust in SCOTUS has fallen over the years. This number is by nearly one-fifth since September 2020, according to a Yahoo News/You poll out this month. Such a result is an incredibly demoralizing expression from our population and a direct reflection of the growing feeling that SCOTUS is deeply engaged in a "radical revision of U.S. history."

The situation has degenerated to the point where, without other information, former federal prosecutor and current MSNBC legal analyst Glenn Kirschner has urged that Justice Alito should "face hearings, and even perjury charges, over the leaked draft opinion that would overturn a woman's constitutional right to abortion, should it become final."

Thomas is the longest-serving of the justices, having been a member of SCOTUS for more than thirty years. Known as a conservative maverick who has been willing to stand alone regarding the issuance of more solo dissents than the rest of his colleagues, it appears his potential influence over the work of the Court is just "around the corner."

By a vote of 52-48, on October 23,1991, the Senate confirmed Thomas at just 43 years of age, following heated hearings that were dominated by the sexual harassment allegations against him made by professor Anita Hill.

Despite his denials, the charges have dogged Thomas throughout his tenure on the high bench. At the time, he replaced SCOTUS retiring Associate Justice Thurgood Marshall, who was the Court's first Black member. The high respect earned by Marshall has escaped Thomas.

Having previously served as a judge on the U.S. Court of Appeals for the D.C. Circuit, he also had been involved with various state and federal governmental agencies, including an eight-year stint as chair of the U.S. Equal Employment Opportunity Commission. Again ironically, the latter is an agency that enforces laws prohibiting workplace discrimination such as that relevant to the claims made by Hill.

Thomas, using his own interpretation of the Constitution's original meaning, often is willing to dismiss precedents with which he disagrees. But no one would have realized this at first blush given the "non-presence" he consistently exhibited while sitting among his peers during oral arguments before the Court...at least not until the arrival of his colleagues Alito, Gorsuch, Kavanaugh, and Barrett.

With the current scandal raised by the question of who leaked Alito's lengthy draft of the proposed Roe opinion, and concern over what happens next, seasoned lawyer and legal commentator Alan Dershowitz has advanced the following partial interpretation:

a. The leaker probably was a desperate law clerk who objected to overruling Roe and friendly with a reporter at Politico (where the story leaked), relying on the source remaining confidential, hoping the leak would influence the outcome.

b. Irrespective of how upset Roberts is over this unfortunate glitch, it is unclear whether a court would compel disclosure of the source, or whether the journalist would go to jail rather than break a promise of confidentiality.

c. The draft does not mean that Roe will echo the final decision of SCOTUS, or that Roberts will be successful in negotiating a modified version.

d. An overruling of Roe will favor Democrats in the November midterm elections. Even if it does not have an effect then, it would achieve a longer-term impact on voting patterns - and, particularly, the 2024 presidential election.

Since the formation of SCOTUS in 1790, we have had 17 chief justices and 103 associate justices, serving an average of 16 years each. Five of these qualify as historically the "worst justices" sitting on the Court. Thomas listed as the fifth in this group seems bent on fulfilling his ranking (behind only Justice Stephen Johnson Field, May 20, 1863-Dec. 1, 1897; Chief Justice Roger Taney, March 28, 1836-Oct. 12, 1864; Justice James Clark McReynolds, Oct. 12, 1914-Jan. 31, 1941 and Chief Justice Melville Fuller, Oct. 8, 1888-July 4, 1910. (Source: Ian Millhiser, March 24, 2015. The Five Worst Supreme Court Justices in American History, Ranked.)

Whatever the ultimate result, the most intense political fight in Washington today now involves SCOTUS, in advance of the imminent Row final ruling.

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