The Ascendant Thomas Court – Part 2
Will the Nascent “Thomas Rule” Produce a More Impartial Supreme Court?
Welcome to the Civic Way journal, a quick take on the relevance of breaking news to America’s future governance. The author, Bob Melville, is the founder of Civic Way, a nonprofit dedicated to good government, and a management consultant with over 45 years of experience improving public agencies.
In my last essay, I discussed Justice Thomas’ growing influence on the Supreme Court and the Court’s flagging credibility. In this essay, I identify some of the causes for the Court’s declining reputation and note how a new standard of conduct—a possible Thomas Rule—could help reverse that trend.
So, why has the Supreme Court’s reputation been fading? There are at least four possible reasons.
First, both parties have turned Supreme Court confirmation hearings into political death matches. The Kavanaugh hearings featured an unwelcome focus on the nominee’s high school escapades. After Judge Jackson was confirmed, Republican Senator Lindsey Graham congratulated the first Black woman ever confirmed to the Supreme Court with a bizarre attack ad.
Second, the justices have been increasingly coy about their judicial and partisan leanings during their confirmation hearings. In some cases, they have misrepresented or cloaked their true views. In a recent editorial, the St. Louis Post-Dispatch wrote that Trump’s three appointees “misled members of Congress by indicating they regarded Roe v. Wade as settled law, not to be overturned."
Third, individual justices, perhaps because of the politicized confirmation gauntlet, have become increasingly partisan. Individual justices rarely surprise us with impartial opinions, opinions that echo the Court’s independence. There have been exceptions, such as Chief Justice Roberts in the ACA case. Still, as the St. Louis Post-Dispatch editorial warned, future justices may be seen as “little more than political hacks in black robes.”
Fourth, judicial opinions that are ideological without intellectually coherence make it hard for citizens to view the Court as impartial. Justices should at least try to link ideology with sound legal principles. Whether one agrees or not, Scalia’s originalism is one such effort. Regrettably, other cases, like the 2000 Bush v Gore ruling, have offered no such pretense. [The Bush v Gore ruling may be a precursor of the independent state legislature theory discussed in a recent essay.]
The wholesale abandonment of stare decisis, the bedrock of America’s common law system, will, if anything, undermine any efforts to solidify the Court’s credibility. If the Court decides to abandon stare decisis to gratify ideological impulses, it will be less likely to be perceived as a neutral arbiter of political or legal disputes. Instead, it will become another legislative body, but one with life tenure, unaccountable to the voters.
The US Supreme Court’s influence is a function of its public legitimacy. As stated by the St. Louis Post-Dispatch, the “Supreme Court has no police force or military command to impose enforcement of its rulings. Until now, the deference that states have shown was entirely out of respect for the court’s place among the three branches of government.” As Chief Justice Roberts knows, once that reputation is tarnished, the Court’s slide into irrelevance could be irreversible.
As Justice Thomas has become more outspoken, his partisan bias has become a more serious threat to the Court’s reputation. Claiming that, unlike the left, the right doesn’t “throw temper tantrums” or “trash Supreme Court nominees.” Refusing, despite clear evidence of potential conflicts, to recuse himself from 2020 election and Capitol Coup cases. Blaming President Biden and a fictional doctrine called the “Biden Rule” for Senator McConnell’s refusal to give former President Obama’s Supreme Court nominee a confirmation hearing.
To paraphrase Mark Twain, it might have been better for Justice Thomas to remain silent and let people think him partisan than for him to open it and remove all doubt.
We can still hope, can’t we?
At a judicial conference earlier this month (sponsored by conservative political groups like the Manhattan Institute), Thomas took a gratuitous, sarcastic shot at media outlets, ‘I will absolutely leave the court when I do my job as poorly as you do yours."
Thomas was referring to past attacks on him, especially from left-of-center media outlets. MSNBC host Joy Reid has referred to Thomas as “Uncle Clarence." The Washington Post once compared Thomas’ views to those of a "White conservative.” Over the years, several other media outlets have ridiculed Thomas for his silence, often unfairly. Few of us would be immune to such criticism.
Many commentators have pointed to Justice Thomas’ remarks about the liberal media as another example of his deeply engrained bias. This may be accurate, but what if Thomas’ statement is a harbinger of something else?
What if Thomas, in his new incarnation, is trying to formulate an ethical doctrine for Supreme Court justices? What if this is merely his first stab at articulating a standard of conduct for justices, a measure by which future judicial behavior (including his own) can be assessed?
If we examine Justice Thomas’ statement more closely, the contours of a new doctrine on judicial impartiality—the Thomas Rule—begin to take shape. “I will … leave the court when I do my job as poorly as you do yours." Since Thomas seems most contemptuous of media bias (toward him), we can infer that impartiality (the absence of bias) must be the cornerstone of what could become the Thomas Rule.
Under the new Thomas Rule, every Supreme Court justice would strive for impartiality. Respect for stare decisis (or at least a good faith effort to strike a balance between precedent and ideology). A coherent, consistent effort to link political ideology and legal theory. Restraint in discussing or supporting political causes. An efficient and enforceable recusal process for navigating perceived conflicts of interest. Guidelines for rendering independent, objective judgement.
Justice Thomas should be commended for sharing his concerns about the Supreme Court’s reputation for impartiality. He should be applauded for launching a healthy debate about stare decisis. He should be praised for raising the issue of conduct standards for the media and federal judiciary.
Most of all, Thomas should be urged to apply the Thomas Rule to his own conduct. If, after applying this standard, Justice Thomas finds his capacity for impartiality irrevocably diminished, he should resign. By doing so, Thomas would provide a model for other justices and perform an invaluable public service.
On second thought, perhaps we should think about term limits.