The Supreme Court began hearings Wednesday that could well determine the fate of abortion rights in the United States. The court will decide whether to uphold a Mississippi law that bans most abortions after 15 weeks. If it does so it will effectively be overturning Roe v. Wade, the landmark 1973 decision that established a constitutional right to abortion.
Leading the charge against Roe is Justice Clarence Thomas, who holds fiercely to the belief that “The Constitution does not constrain the States’ ability to regulate or even prohibit abortion.”
We recall how Justice Thomas, only the second Black man to ever make it to the court, took his seat 30 years ago after prevailing against what he termed a “high tech lynching” in riveting Senate confirmation hearings convulsed by Anita Hill’s sexual harassment allegations.
For almost all those years since that time, Justice Thomas has been a court hermit, a voice in the wilderness holding unyieldingly to incendiary beliefs too far afield for even many conservatives to condone.
But in a remarkable twist, Clarence Thomas has become a prime-time powerhouse, a legal luminary, the court’s conservative standard bearer. He is the longest serving member on a court, which now has a 6-3 conservative majority, and his fearless anti-establishment creeds have made him the favourite of Donald Trump and his legions.
He is the subject of a flattering biographical documentary, a sympathetic book and positive journalistic appraisals. He’s been talked about, no less by The New York Times, as perhaps becoming the Ruth Bader Ginsburg of the right.
The acceptance of many of his outdated views bears testimony to the distressing trajectory his country is on. As he and his fellow travellers no doubt relish, he is the left’s worst nightmare.
On the Mississippi abortion law, experts maintain that it blatantly contravenes Roe v. Wade and subsequent court precedents. But there is no guarantee that a court stocked with Justice Thomas and his like-minded will see it that way.
A woman’s right to choose is but one domain in which Justice Thomas courts rancour. He diverges sharply from the views of the first Black Supreme Court justice, civil-rights giant Thurgood Marshall. With constitutional originalism as his legal philosophy, Justice Thomas holds to positions written by the framers who drafted the Constitution more than 200 years ago, when slavery was rampant.
He is no great proponent of desegregation and has been a strong voice against affirmative action, writing that it amounts to racial discrimination. He fails to take issue with a criminal justice system that is rife with racism.
On the matter of voting rights, Justice Thomas has echoed a view of Mr. Trump in writing a heated dissent to the court’s decision not to endorse a challenge to the broadened use of mail ballots in Pennsylvania.
He’s come out against press freedoms, calling for the Supreme Court to reconsider a landmark 1964 ruling making it hard for government officials to prevail in libel suits. He’s no fan of restrictive gun laws, holding that they violate second amendment rights.
The Heritage Foundation, a conservative think tank, glowingly celebrated the Thomas legacy last month. Senate Minority Leader Mitch McConnell called him “a legal titan” and “the brightest possible North Star.”
MSNBC’s Joy Reid, who is Black, has taken a different view, raising the ire of conservatives by referring to Justice Thomas as “Uncle Clarence,” a likely reference to the “Uncle Tom” slur for African-Americans perceived as selling out their own.
In his youth, Justice Thomas was an ardent Black nationalist. But in his book, The Enigma of Clarence Thomas, Corey Robin says that he came to believe that racism and white supremacy were too entrenched in the American culture to be eradicated. Justice Thomas believes, the author says, that the state’s attempts to improve conditions for African-Americans are acts of paternalism that perpetuate the injustices. He appears to believe that Black people are better off without further integration into white society.
Justice Thomas is 73. Unlike in Canada where justices must retire at 75, there are no such term limits in the U.S. Commenting on his three decades on the court, Mr. McConnell said that “At the risk of sounding greedy, we’d like 30 more years.”
There won’t be that many. But with his amazing renaissance, it’s a safe bet that Clarence Thomas will be a source of great power, power that stifles the progress of women and minorities and holds the country to the values of the past for a long time to come.
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