Clarence Thomas, Winner

I find Clarence Thomas to be one of the more interesting figures on the U.S. Supreme Court, though I personally am not sympathetic to his views. I devoured this long article on Thomas by Jeffrey Toobin in the New Yorker. The article talks a lot about his views, and his wife Ginni’s conversion to open, public political activism in the great Santelli-fueled freakout of 2009. (He plausibly argues that Ginni’s bizarre call to Anita Hill, asking her to apologize for her testimony and to “pray about this,” may be a sign that “the Thomases live in a world where, it seems, everyone believed Thomas’s testimony, and Ginni might well have got the impression that everyone else did, too.”) It also talks about Thomas’s worldview, and his belief in the illegitimacy of government for almost everything, is expressed in terms of resentment of the Ivy League and the “know-it-all-elite.” Among his closest friends are talk radio hosts like Rush Limbaugh and Mark Levin, and he’s essentially brought the style and worldview of talk radio to the law; his opinions are influenced by – and also an influence on – the popular memes of populist conservative radio. And of course it mentions his famous unwillingness to ask questions or, at this point, even pretend to take the hearings seriously; granted of course that most of the justices have already made up their minds and the questions are mostly for show, or to influence Anthony Kennedy.

But what the article point out most of all is that Thomas has succeeded more than anyone would have expected, in the sense of mainstreaming some views that once seemed beyond the pale and, most importantly, re-opening issues that were considered settled. His view on most issues is to the right of Antonin Scalia, and by pushing for ideas that hadn’t been seriously considered since the ’30s, he’s not only brought those ideas back into play, but he’s shifted the Overton Window. The U.S. Supreme Court decisions don’t go as far as Thomas would like them to, but they probably go much farther than they would if he hadn’t been there. That lower courts are striking down the individual mandate of the health-care law, and that the Supreme Court is considered a good bet to strike it down too, is a sign of how much Thomas’s ideas of constitutional interpretation have become mainstreamed. When the mandate was passed, a lot of people felt that no one would strike it down, since its legality was based on a great deal of precedent – but judges feel increasingly emboldened to throw out those precedents, and Thomas is as much responsible for that as Scalia if not more. So if the Court strikes it down (and Thomas seems highly unlikely to recuse himself because of his wife’s involvement in lobbying against the law) it may be partly due to Thomas’s slow push for a return to pre-FDR ideas.

I’m not personally sympathetic to that, as I said. (And this is without even getting back into arguing about the allegations about his behaviour; it’s been 20 years and there’s still never been a news story quite like it.) What is striking though is that there has been very little pushback on the U.S. left: Democratic administrations have not made the courts a priority, whereas Republican administrations since Reagan have been aggressive in appointing young conservative judges who could slowly move the whole system to the right. U.S. Democrats and liberals don’t seem very good at incrementalism.

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