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It’s Donald Trump’s Court And We Have to Live With It


Mark Joseph Stern’s piece on how late-period Clarence Thomas has taken to filling the U.S. Reports with Federalist op-eds contains a crucial punchline:

Thomas penned many such missives throughout this term, calling on his colleagues to overrule decades of progressive precedent that he happens to dislike. But he didn’t stop there. Thomas seems to feel increasingly unrestrained by any notions of judicial propriety; his recent opinions bashed, among other targets, the media, a lower court judge, and (naturally) women who get abortions. He has embraced a freewheeling, aggrieved style reminiscent of a late-career Antonin Scalia. And he seems to be having the time of his life.

A day before Thomas’ “dismemberment” diatribe, he authored a partial dissent from the court’s decision blocking the Trump administration from adding a citizenship question to the 2020 census. Ignoring the mountain of evidence that Commerce Secretary Wilbur Ross lied about his reason for inserting the question, Thomas lashed out at U.S. District Judge Jesse Furman for challenging Ross’ falsehoods. Furman, an Obama appointee, was clearly “a judge predisposed to distrust the Secretary or the administration,” Thomas wrote. And what he had done amounted to arranging facts “on a corkboard and—with a jar of pins and a spool of string—create an eye-catching conspiracy web.”

Here is a sitting Supreme Court justice attacking a district court judge as both a Democratic hack (“predisposed to distrust”) and a wild-eyed conspiracy theorist. Why not take the next step and call Furman an “Obama judge”? By the way, Justices Neil Gorsuch and Brett Kavanaugh signed onto this rhetoric without any apparent reservations. Looks like not every justice agrees with Chief Justice John Roberts that the federal judiciary doesn’t break down along partisan lines.

With the confirmation of Kavanaugh they just don’t have to care anymore. Even Alito, the smartest and generally most able to cloak his predilections in clinical language of the Roberts Five, is falling into the wingnut talk radio vernacular.

The conservatives who lie about the naked partisanship of the Roberts Court are at least advancing their own interests with their bad faith. But the elite legal liberals who — whether for careerist or delusional reasons — insisted on testifying to the great character and scrupulous nonpartisan legal scholarship etc. etc. of Gorsuch and/or Kavanaugh really acted unforgivably.

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