Clarence Thomas and the politicization of the Supreme Court
Justice Clarence Thomas, in a speech last weekend to the Federalist Society, accused his critics of 鈥渦ndermining鈥� the legitimacy of the Supreme Court 鈥� politicizing it in ways that jeopardize the Court鈥檚 credibility in the eyes of the public. He warned:
You are going to be, unfortunately, the recipients of the fallout from that 鈥� that there鈥檚 going to be a day when you need those institutions to be credible and to be fully functioning to protect your liberties. That could be either a short or a long time, but you鈥檙e younger, and it鈥檚 still going to be a necessity to protect the liberties that you enjoy now in this country.
Odd coming from Clarence Thomas 鈥� who has done more to politicize the Court than anyone in recent years, with the possible exception of his brother on the bench Antonin Scalia.
Last year, you鈥檒l recall, the votes of Thomas and Scalia swung the Court in the direction of the right-wing group Citizens United 鈥� plaintiffs in the case that struck down federal laws limiting corporate campaign contributions.
Before the decision, Thomas and Scalia also p billionaire financiers Charles and David Koch, driving forces behind loosening restrictions on big money in politics.
Back in 1991 when Thomas was nominated to the Supreme Court, Citizens United spent $100,000 to support his nomination. The in-kind contribution presumably should have been disclosed by Thomas.
At the very least you鈥檇 think that, given his connections with Citizen鈥檚 United and with the Koch brothers, Thomas would have recused himself from the Citizens United decision in order to avoid the appearance of a conflict of interest. He would have recused himself, that is, if he were as concerned about the legitimacy of the Supreme Court as he says he.
Thomas has also failed to disclose financial information about his wife鈥檚 employment. Virginia Thomas is the founder of Liberty Central, a Tea Party organization now receiving unlimited corporate contributions due to Citizen鈥檚 United. Among the things she鈥檚 lobbying for are the repeal of what she terms the 鈥渦nconstitutional鈥� healthcare legislation.
Because of his wife鈥檚 direct involvement, seventy-four House Democrats have sent a letter to Justice Thomas asking him to recuse himself from any case questioning the constitutionality of the legislation.鈥漎our spouse is advertising herself as a lobbyist who has 鈥榚xperience and connections鈥� and appeals to clients who want a particular decision,鈥� the legislators wrote. 鈥淭hey want to overturn health-care reform.鈥�
Scalia isn鈥檛 much better. In December he met in a 鈥檚 Tea Party Caucus, a group formed in large part to fight for the repeal of health-care reform. Can you imagine the firestorm if Justice Sonia Sotomayor met in secret with the House Progressive Caucus?
Even Thomas鈥檚 choice last weekend of the Federalist Society as a venue to air his grievances about his critics reveals his affinity for partisan politics. The Federalist Society, after all, is a well-established network of conservative lawyers and politicians dedicated to rolling back regulations. It鈥檚 financed in part by the Koch brothers.
Look, I鈥檓 not so naive as to believe that Supreme Court justices don鈥檛 have political views and values. The point is precisely the one Thomas himself made last weekend: If the Court is perceived by the public to be politically partisan, it loses the public鈥檚 confidence. That confidence, as described by Justice Stephen Breyer in his impassioned dissent in Bush v. Gore (a case like Citizens United that could be understood only in partisan political terms) 鈥渋s a public treasure. It has been built slowly over many years鈥� and is a 鈥渧itally necessary ingredient of any successful effort to protect basic liberty and, indeed, the rule of law itself.鈥�
When Clarence Thomas and Antonin Scalia go to secret political strategy sessions with Republican partisans they jeopardize everything the Supreme Court stands for. They make a mockery of the common sense of Americans.
If it wants to maintain its legitimacy the Court has to appeal to that common sense rather than to partisan politics. As Justice John Paul Stevens wrote in his dissent to Citizens United:
At bottom, the Court鈥檚 opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.
Citizens United is an illegitimate decision, arrived at by at least two justices who should never have participated in it.
--------------------------
海角大神 has assembled a diverse group of the best economy-related bloggers out there. Our guest bloggers are not employed or directed by the Monitor and the views expressed are the bloggers' own, as is responsibility for the content of their blogs. To contact us about a blogger, click here. To add or view a comment on a guest blog, please go to the blogger's own site by clicking on the link above.
