Many conservatives are frustrated that their leaders play by the gentlemanly Marquis of Queensberry rules while leftists ruthlessly fight with Alinksy rules. For example Clarence Thomas is justifiably viewed by conservatives as a heroic defender of the Constitution and as one of the best justices if not the best. Yet he has made televised comments legitimizing extremist liberal activists who have shredded the Constitution to further their ideological agenda.
Some days I just feel more and more distant from people that I think see the world the same way I do … So many people seem to be so willing to … award praise … for whatever reason.
--- Rush Limbaugh September 13 2013
Vintage Thomas
In high-profile decisions last June Justice Clarence Thomas did not disappoint his admirers. He was the only justice who would have struck down Section 5 of the Voting Rights Act delivered a blistering detailed solo opinion attacking affirmative action and joined two dissents in the gay marriage case as well as court holdings in the employment discrimination allegation cases.
For example in Fisher v. U. of Tex. Thomas demonstrated that pro-affirmative action justices use the same rationalizations (pdf 31-2) as slaveholders and segregationists did. In U.S. v. Windsor he joined Justice Scalias opinion excoriating (pdf 53 55) five justices for declaring that those who disagreed with them regarding gay marriage are enemies of the human race and unhinged members of a wild-eyed lynch mob.
The Justice vs. the Television Personality
Why then does Thomas make televised public statements cutting the legs out from under the powerful official opinions he has written and joined? His (and Justice Scalias) lavish praise of extremist liberal judicial activists as people (good honest) has been shown in detail to be unwarranted (here or here). But just two months prior to his vintage term-ending performance Thomas went much farther virtually declaring all he had fought for to be no better than all the values and judicial lawlessness he had spent two decades fighting against:
50:25; 51:44 It would be enormously prideful and presumptuous of me to assume that I have the right answer. I have an opinion. I do not have the gospel. I respect your right to have a different opinion ... I am certainly ... not going to ... disrespect other justices ... if they disagree with me. I respect their right to have a different opinion.
This statement is virtually indistinguishable from the secular religion of devout leftist multiculturalism whose harms have been extensively discussed elsewhere (e.g. here here here). Suffice it to say that it is preaching from the multiculturalist bible to declare that all justices opinions are worthy of respect. This legitimizes the very justices Thomas has accused of arrogantly and dishonestly -- and illegitimately -- imposing their own values while flying under the false flag of merely interpreting the law.
Difference of Opinion: Practice vs. Theory
In theory litigation is decided by first determining the facts and second applying the law to those facts. But in practice for activist justices their own unpopular personal values and policy preferences trump (8) both facts and law which they contemptuously suppress and distort.
Spanning two decades on the Court Justice Thomas himself has reiterated this point. Just last year he repeated (pdf 47 55) his earlier protest that five justices illegitimately and without constitutional authority had acted on nothing more than their belief that their own sense of morality ... pre-empts that of the people and their representatives. In 2002 Thomas joined Justice Scalias objection to the opinion of six justices resting so obviously upon nothing but their personal views. Finally in his very first term he joined Scalias lament that constitutional adjudication consists primarily of making value judgments notwithstanding that the peoples value judgments are quite as good as those taught in any law school -- maybe better.
So difference of opinion in a politically contentious case concerns not the meaning of an abstruse legal provision (e.g. patent law) but fundamental values and whether the Constitution empowers any five justices to impose their personal morality upon everyone else.
If the most critical judicial decisions are simply the substitution by justices of their own unpopular idiosyncratic views of right and wrong for those adopted by the peoples elected representatives questions inescapably arise. Are all values worthy of respect? If not when is the line crossed? Are some values so dangerous that they threaten our heritage our freedoms and not only our way of life but our very lives themselves? Must such values be accepted out of respect for different viewpoints or should they be vigorously fought?
Consider a sample of opinions written joined and opposed by Thomas over 22 years:
Respect for This?
- Thomas has written that justices pervasively dissemble issue fiats supported by mere window dressing (19) and pronouncements they do not even believe (23) and use (pdf 154) sophistry and verbal wizardry. Is dissembling entitled to respect?
- Do pro-affirmative action opinions deserve respect when as noted they employ justifications analogous to those advanced by slaveholders and segregationists?
- Does Thomas actually respect opinions he has denounced as based on the theory that blacks are inferior to whites? Were Dred Scott and Plessy v. Ferguson worthy of respect?
- When justices lawlessly (pdf 26) make illegitimate (13) decisions (pdf 47) and arrogantly usurp (13) power limited only by their sense of what they can get away with (pdf 56) should the public believe that this is as respectable as justices who protest it?
- In Junes fiat declaring unconstitutional the Defense of Marriage Acts limitation of federal marriage benefits to one-man-one-woman partners five justices proclaimed that the Constitution forbids laws even if overwhelmingly enacted that they believe demean ... moral and sexual choices. If that merits respect shouldnt it also apply to polygamy and marriage between family members? When a woman marries herself are both self-marriage partners entitled to benefits? How are the morally superior five going to rule when inevitably NAMBLA and ZETA come calling to seek constitutional civil rights protection for mens free lifestyle choices to have sex with boys and animals?
- Justice Stevens has labeled families of murder victims as mere third parties not themselves victims notwithstanding the trauma caused by their loss. Other justices have treated crime victims with contempt seeking to deny victims families any role in court proceedings. They shed tears for brutal rapists and murderers viewing them as the true victims (even demanding enforcement of a never-enacted law to save their lives) -- with nary a tear for those murdered tortured and raped nor for their loved ones. Shockingly justices granted the most depraved convicted barbarians a right to commit additional torture rapes and murders with no punishment whatsoever precisely because they are the most depraved. Do most Americans accept these values?
- Thomas has rebuked justices who unnecessarily sentenced law-abiding citizens to lives of gang-inflicted terror and misery pointing to the shame that our most vulnerable citizens ...the people who will have to live with the consequences of todays opinion do not live in justices safe neighborhoods. Does the Constitution really value alleged gang member rights far more highly than the right of the law-abiding to live safely and fear-free?
- Did five justices warrant respect when they conferred upon often-corrupt government officials the power to confiscate private property from the powerless to give to the powerful? These justices Thomas pointed out (14) provided safety from government for citizens in their homes while denying protection from destruction of the homes themselves.
- Thomas has accused five colleagues of validating infanticide which he described in gruesome detail. Is infanticide respectable?
- Is it merely a difference of equally respectable opinions when justices seek to deny First Amendment protection for candidates challenging entrenched incumbents seeking to avoid criticism (15) by suppressing political speech while at the same time as Thomas put it extending First Amendment protection to ... making false defamatory statements filing lawsuits dancing nude exhibiting drive-in movies with nudity burning flags and wearing military uniforms? He added that these justices rather than going out of their way to protect political speech go out of their way to avoid protecting it.
- In sum does being a U.S. Supreme Court justice automatically confer respect for his or her opinions -- no matter how dishonest lawless and in defiance of the American people?
Conclusion
Those who know Clarence Thomas have vouched that far from the frequent hateful leftist caricature of him as bitter and angry he is actually very decent and warm with a great sense of humor. But does decency require public expression of respect for judicial soul mates of the fanatics who so ruthlessly savaged him? While Thomas cannot be expected to insult his colleagues on television surely getting along with them does not require him to go to the opposite extreme by saying that his opinions reflecting his and our values are no better than theirs.
To those who highly regard Thomas it can be distressing to hear him say that one justices opinion is as respectable as anothers. It is galling that Judge Bork was viciously attacked as out of the mainstream by extremists seeking justices to impose truly out-of-the-mainstream values and policies upon the American people by running roughshod over the rule of law and constitutional representative democracy. (The insufferably pompous Justice Kennedy has proven the attacks to have succeeded spectacularly.)
In often nullifying societys values expressed through law the Supreme Court has become the last best hope of those who cannot prevail democratically. Justices who believe that the end justifies the means disregard rewrite and invent law. They thereby impose values and policies that are unacceptable and even abhorrent to often substantial voting majorities -- and thus cannot be adopted through public persuasion elections and the legislative process.
As noted Justice Thomas himself has accused fellow justices of dissembling advocating for infanticide echoing racist views etc. never shrinking from bravely defending the Constitution in writing. How then can he publicly say that what he has so bluntly condemned is worthy of respect and implicitly just as valid as his views? There are huge differences between humility and self-abasement between respect and appeasement between cordiality and surrender.
With government becoming more tyrannical every day with officeholders who follow Alinsky rules why should Thomas legitimize enablers who oppose what he stands for? One can only hope that after as noted he joined an opinion denouncing five justices for virtually lying and adjudging four justices and all others who oppose the five to be unhinged enemies of the human race Justice Thomas will not appear to endorse such values with relativistic language.
Finally on the most important and divisive political issues a majority of justices have demonstrated their contempt -- and disrespect -- for the American people and their right to representative government. It is high time to ask whether the American people should reciprocate that disrespect and contempt.
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Originally in American Thinker; slightly modified
Lester Jackson Ph.D. a former college political science teacher views mainstream media suppression of the truth as essential to harmful judicial activism. His recent articles are collected here.