Clarence Thomas Is Telling Us Where The Right Wants To Go
On days like this, it's important to remember that just one of the six right-wingers on the Supreme Court was appointed by a president who initially took office having won the popular vote.
Three are the work of one Donald Trump, who went on to lose the popular vote in spectacular fashion a second time along with the Electoral College. As we've been reminded this week, he responded by trying to overthrow the government. Oh, and by the way, one of those seats was stolen by Senate Republican Leader Mitch McConnell in a blatant assault on the constitutional prerogatives of the Executive Branch. McConnell used a made-up standard to deny Barack Obama an appointment eight months before an election, which he proved was completely made-up by disregarding it four years later to get Amy Coney Barrett on the bench a week before the 2020 election. By that point, millions of votes had already been cast. Two others were appointed by George W. Bush after he won reelection in 2004, but he initially rose to the big chair despite losing the popular vote in 2000. He took office when the Supreme Court stopped the Florida recount in Bush v. Gore. This is a glimpse of what would have happened had Trump merely lost by one or two states. In fact, that 5-4 decision was a preview of the lawlessness that would come to define the Court's conservative majority in the 21st century.
The most succinct view of that lawlessness, though, has been provided this week by Justice Clarence Thomas. In fairness, the George H.W. Bush appointee is the one conservative appointed with popular-vote backing. But on Thursday, in New York State Rifle & Pistol Association v. Bruen, he nixed the rights of states to make their own concealed-carry policies by creating a new doctrine within the Second Amendment and a new, entirely arbitrary test for gun-control policies that will likely doom a lot of future legislation. On Friday, in Dobbs v. Jackson Women’s Health Organization, he backed nixing the individual privacy rights of American women and granted states the authority to make abortion illegal. The Court's six conservatives joined together to throw out Roe v. Wade and Casey v. Planned Parenthood, the former a legal precedent that stood for half a century. In their confirmation hearings, some of the conservative justices testified that Roe was "settled law" and "the law of land," which apparently meant it was settled until they were in a place to unsettle it. As the Court's three liberals wrote in dissent, Casey was partly the work of Republican-appointed justices who thought respecting Roe as precedent was vital to the continued legitimacy of the Court.
There's no need for them to concern themselves with such things anymore, though. They've got the votes! Thomas is so confident in this that he just went ahead and wrote in a concurring opinion that they're also coming for the right to contraception, same-sex marriage, and whatever else they feel like. "For that reason, in future cases, we should reconsider all of this Court's substantive due process precedents, including Griswold, Lawrence, and Obergefell," Thomas wrote. They are coming for it all. The 40-year project to seize control of and make policy through the judiciary is coming to a thrilling crescendo. Who needs Congress when you've got SuperCongress? Who needs democratic legitimacy when you've got the votes?
What this does raise the prospect of, along with proclamations from Republican Senate candidates that they intend to privatize Social Security, is that the conservative movement may finally have the chance to actually implement their full policy regime over the next few years. Sure, they've done rounds of privatization and deregulation and immigration crackdowns before. But now we're getting a look at the whole program, which may well include allowing states to ban access to contraception. This does not feel like a political winner in 2022, but who knows what our elections will look like in the future. The Court will continue to play a role there, too, an arena in which it has already proved itself potentially decisive. Even before the Trump crew came aboard, the Supremes unleashed unlimited political money in our elections and gutted the Voting Rights Act. They have refused to intervene on behalf of the American citizens who have been systematically disenfranchised by extreme gerrymandering. If they're willing to strike down Griswold v. Connecticut, a 7-2 decision holding that Connecticut couldn't outlaw married couples from seeking contraception, they can surely do anything.
Which is why it's instructive, still, to remember that five of these six individuals began their tenures with a legitimacy deficit, and the only way forward seems to be down. Neil Gorsuch, Amy Coney Barrett, and Brett Kavanaugh have bucked the conservative line in a few surprising instances, but on the big issues, they can be relied upon. How could you show your face at the next Federalist Society gala if you suggest we can't just throw out decades of legal precedent to arrive at a decision that happens to advance a major policy priority of the conservative movement? The champagne toasts would surely dry up. Though they'll be flowing again if they go for the Major Questions Doctrine, a conservative legal theory that would decimate the ability of Executive Branch agencies to regulate...much of anything. (The donor list at the Fed Society will be chuckling heartily.) They could use a decision still outstanding in this term, in the case of West Virginia v. Environmental Protection Agency, to get that one done if they decide to—not for the first time—issue a sweeping ruling that far outstrips the narrower question at issue in the case. In fact, Chief Justice John Roberts suggested that's what they did, unnecessarily, in Dobbs. It's what Anthony Kennedy did to unleash unlimited money in Citizens United, and what Roberts did to savage voting rights in Shelby County.
And in the meantime, these people—the big freedom, small-government types—have succeeded in seizing the levers of power that will allow them to control how you live your life. Abortion will shortly be illegal in most Republican-controlled states, but how long will it be until Democratic-controlled states are banned from making their own policies? We just saw this happen with guns, as Thomas wrote an opinion that will force New York residents to live in the same guns-everywhere environment that Ohioans have chosen for themselves. Just this week, they decided to force taxpayers to fund religious schools. They will not stop until they've imposed their vision for how individuals should live their lives on all of us. They will not hesitate to shred precedent on their way there. We will all need to get accustomed to the idea that arbiters of the law can behave lawlessly.
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