Jun 04, 2022
"Self interest speaks all sort of tongues, and plays all sorts of roles, even that of disinterestedness." --Francois, Duc de La Rochefoucauld
The prospect of a wonderful life as a Justice on the United States Supreme Court was almost derailed by a pubic hair back in 1991. That was when Clarence Thomas was being considered for confirmation to the United States Supreme Court by the United States Senate. Clarence defeated the pubic hair, was confirmed, and has now been on that Court for 30 years.
Clarence's pleasure at being a member of the Court has been lessened, not because of having to recuse himself from significant cases because of conflicts of interest, a concept that numerous commentators have tried to explain to him, but by the changing complexion of the Court. As he explained in an interview with Robert Barnes of the Washington Post, the Court that he served on when he first joined the Court was, as he described it, "a fabulous court." He said how great his former colleagues had been, saying of Ruth Bader Ginsburg with whom he served for almost 30 years that: "You knew where she was and she was a nice person to deal with." He continued praising Sandra Day O'Connor, David Souter, and saying, without doing it, that "I can go on down the list." He explained that in his first 11 years on the Court it might have been "a dysfunctional family, but we were a family."
Sadly for Clarence, personnel have changed and as he said in his interview, the present Court is "not the Court of that era." In response to a questioner, he said that he was worried that it might be difficult to keep respect for ideological differences among the Justices given the people now on the Court. He might have been prescient in making that comment although prescience has not been one of the qualities for which he has been known.
His lack of prescience was clearly on display in his dissent in the 2020 opinion of Rogers v. Grewal in which the Court refused to hear an appeal from a case affirming New Jersey's right to refuse to permit a person who services automated teller machines in high crime areas to carry a gun to use for self-defense while at work. In explaining his dissent and referring to an issue that was not before the Court but was merely illustrative he said that: "It seems highly unlikely that the Court would allow a State to enforce a law requiring a woman to provide a justifiable need before seeking an abortion." The recently leaked draft of the opinion that may overrule Roe v. Wade, demonstrates his lack of prescience.
The next sentence in his dissent explains his apparent lack of interest in self recusal because of conflicts of interest caused by his wife. In that sentence he says that: "This Court would almost certainly review the constitutionality of a law requiring citizens to establish a justifiable need before exercising their free speech rights." And in that sentence he explains his complete lack of concern over the obvious conflict of interest that presents itself when he is asked to consider cases that involve attacks on the 2020 election results in which his wife, Ginni Thomas, has been an active participant and in which she is merely exercising her free speech rights.
Ginni was one of the most conspicuous people attempting to persuade those in positions of power to overturn the results of the 2020 election. Her efforts included emails sent to Arizona lawmakers after the media called the election in that state for Biden. In an e mail to two Arizona lawmakers she told them the election had been marred by fraud. She told them that they were the ones that had the power to fight back against the fraud that she believed resulted in the election of Joe Biden. She exchanged 29 text messages with Mark Meadows, the trump's White House chief of staff as the trump was trying to overturn the election results.
Some would have thought that Ginni's active involvement in trying to overturn the election might cause Clarence to consider the possibility that her activities were such that he would have to recuse himself should any cases involving the election in which she had been actively involved come before the Court. They would have been wrong.
One case that has already made it to the Supreme Court pertains to a request by the House Jan. 6 Committee for records from the National Archives related to the storming of the Capitol and the election fight. Those records may very well include e mails from Ginni pertaining to the election fight. The trump tried to block the Committee's access to those records citing executive privilege. The dispute found its way to the Court which ruled 8-1 that the trump could not block the Committee's efforts to get those records. The lone dissenter was Ginni's husband. It's a safe bet she fixed him a really nice dinner that night. For good reason.
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