There is no question that the court has become politicized, to its and the nation’s great detriment. But to be subject to a lecture on that fact by Justice Thomas, of all people, is like listening to a plutocrat lounging by his infinity pool in a bathrobe, eating a gold-plated steak while bemoaning the horrors of extreme income inequality.
Has it really not occurred to the justice that by giving partisan political speeches in partisan political environments, he is precisely what is damaging the integrity of the Supreme Court? Perhaps being cosseted in prestige and power for so long makes it easy to ignore the consequences of your words and actions. Justice Thomas isn’t alone on that count, of course. In 2004, Justice Antonin Scalia went duck hunting with Vice President Dick Cheney and accepted free air travel from him, even as Mr. Cheney had a case pending before the court. In 2016, Justice Ruth Bader Ginsburg called Mr. Trump “a faker” in a CNN interview. “I can not imagine what the country would be like – with Donald Trump as our president,” she told the Times in a previous interview. The Times editorial board criticized the justices’ behavior in both cases, arguing that, as we said at the time, they should watch what they say and do “in the interest of justice, and of the court’s reputation.”
These days, Justice Thomas and his fellow right-wingers are barely pretending to care about the court’s reputation; they’re just whining about public outrage at their rulings even as they flaunt the most politicized majority in memory. There are now two members of the court, Justice Thomas and Justice Brett Kavanaugh, who have attacked Democrats and liberals, as a group, in public settings. (Small World Dept .: Justice Kavanaugh – who accused Democrats at his 2018 confirmation hearing of an “orchestrated political hit” against him and warned that they had “sowed the wind” – was a member of the legal team that helped Mr. Bush prevail in the 2000 election fight.)
Even Senate Republicans ‘outrageous engineering of the court’s current right-wing supermajority seems to have escaped Justice Thomas’ concern. At the Friday event – again, remember, sponsored by conservative groups – he claimed that Republicans had “never trashed a Supreme Court nominee.” Yet does not history record that they openly stole a vacancy from President Barack Obama in 2016 by refusing even to give a hearing to his third nominee, Merrick Garland? On the contrary, according to Justice Thomas: Mr. Garland “did not get a hearing, but he was not trashed.” As Tom Cruise’s contract killer in “Collateral” said after shooting a man who then fell out of a tall building, “I shot him. Bullets and the fall killed him. ”
The Supreme Court has always operated within and not outside politics; like the rest of our government, it consists of human beings. Still, the justices have generally striven to stay above the fray. In the interest of protecting and promoting their institutional legitimacy, they have come together to decide some of the most contentious cases; the vote in Brown was 9 to 0, in Roe 7 to 2. Today’s right-wing justices appear to have no qualms about narrow victories, even though five of them were appointed by presidents who first won the presidency after losing the popular vote. Perhaps their brazenness is not in spite of this fact but because of it. They ascended to their high position in a manner that disregarded a majority of the American people, so why not rule that way, too?
The Supreme Court is not there to vindicate the demands of the majority, but neither is it there to thumb its nose at that majority again and again, in a nakedly partisan way. If Justice Thomas is genuinely concerned about eroding faith in his own institution, the first thing he can do is look in the mirror. The next thing he can do – I’ll say it again – is step aside and give the job to someone who will actually work to protect the integrity of the court.