This Supreme Court fool earned a dubious honor

Friends,

I’ve long assumed that Samuel Alito was the worst.

Alito — who authored the majority opinion in Dobbs v. Jackson Women's Health Organization (2022), the case that ended constitutional abortion rights by merely asserting that the high court’s prior opinion in Roe v. Wade (1973) was wrongly decided; who accepted a 2008 luxury fishing trip to Alaska, including private jet travel, from hedge fund billionaire and GOP donor Paul Singer yet failed to disclose it on Alito's financial forms and didn’t even recuse himself from decisions involving Singer’s subsequent business before the Supreme Court; who hoisted an inverted American flag outside his Virginia home shortly after the January 6 Capitol riot, a symbol of support for Trump's false claims of a stolen 2020 election — has the moral and intellectual stature of a poisonous toad.

But I’ve come to revise my view of the court’s worst Justice.

Clarence Thomas is 77 years old. He has now served on the Supreme Court for over 34 years, making him the longest-serving member of the Court. He is a bitter, angry, severe hard-right, intellectually dishonest, ideologue. After reading his latest thoughts on America, I’ve concluded Thomas is even worse than Alito.

Last Wednesday, Thomas gave a rare public address at the University of Texas in Austin that began as a banal tribute to the Declaration of Independence before degenerating into a misleading screed against progressivism.

“At the beginning of the twentieth century, a new set of first principles of government was introduced into the American mainstream,” Thomas intoned. “The proponents of this new set of first principles, most prominently among them the twenty-eighth president, Woodrow Wilson, called it progressivism.”

Thomas went on to blame progressives for the worst crimes of the 20th century, insisting that “Stalin, Hitler, Mussolini, and Mao” were all “intertwined with the rise of progressivism,” as was “racial segregation,” “eugenics,” and other evils.

This is pure rubbish.

In reality, America’s Progressive era emerged at the start of the 20th century from the corruption and excesses of America’s first Gilded Age (we’re now in the second, if you hadn’t noticed) — its record inequalities of income and wealth, its “robber barons” who monopolized industries and handed out sacks of money to pliant legislators, it’s dangerous factories and unsafe working conditions, its violent attacks on workers who tried to form unions, its corporate control over all facets of government, its widespread poverty and disease, and its corrupt party machines.

In many ways, the Progressive Era — whose most prominent leader was Republican president Theodore Roosevelt, not Woodrow Wilson, by the way — saved capitalism from its own excesses by instituting a progressive income tax, an estate tax, pure food and drug laws, and America’s first laws against corporate influence in politics.

Then, under Teddy Roosevelt’s fifth cousin (Franklin D.), came Social Security, the 40-hour workweek (with time-and-a-half for overtime), the right to form unions, and laws and regulations that limited Wall Street’s ability to gamble with other people’s money.

Clarence Thomas got it exactly backwards. Had we not had the Progressive Era and its reforms extending through the 1930s, America might well have succumbed to fascism — as did Germany under Hitler, and Italy under Mussolini, or to communist fascism, as did Russia under Stalin. Progressive and New Deal reforms acted as bulwarks against the rise of fascism in America.

In fact, it’s been the demise of such reforms since Ronald Reagan that have opened the way to Trumpian neo-fascism.

Over a third of American workers in the private sector were unionized in the 1950s, giving them bargaining leverage to get higher wages and better working conditions. Now, fewer than 6 percent are unionized, which has contributed to the flattening of wages, a contracting middle class, inequalities of income and wealth rivaling the first Gilded Age, and an angry and suspicious working class that’s become easy prey for demagogues.

Wall Street has been deregulated — allowing it to go on gambling sprees such as the one that produced the financial crisis of 2008, which claimed millions of working peoples’ homes, savings, and jobs.

America’s social safety nets have become so frayed that almost a fifth of the nation’s children are now in poverty. Yet Reagan, George W. Bush, and Trump have slashed taxes on the rich and on big corporations and have allowed giant corporations to merge into giant monopolies rivaling the trusts of the first Gilded Age. And Trump has ushered in an era of corruption the likes of which America hasn’t seen since that earlier disgraceful era.

Thomas claims that, “The century of progressivism did not go well.” Baloney. It helped America create the largest middle class the world had ever seen, while also extending prosperity to millions of Black and brown people.

The tragedy is that America turned its back on progressivism and on social progress, in part because of the Supreme Court and Justice Clarence Thomas.

Flashback: I was in law school in 1973 when the Supreme Court decided Roe, protecting a pregnant person’s right to privacy under the 14th amendment to the Constitution.

Clarence Thomas was in my law school class at the time, as was Hillary Rodham (later Hillary Clinton) and Bill Clinton.

The professors used the “Socratic method” — asking hard questions about the cases they were discussing and waiting for students to raise their hands in response, and then criticizing the responses. It was a hair-raising but effective way to learn the law.

One of the principles guiding those discussions is called stare decisis — Latin for “to stand by things decided.” It’s the doctrine of judicial precedent. If a court has already ruled on an issue (say, on reproductive rights), future courts should decide similar cases the same way. Supreme Courts can change their minds and rule differently than they did before, but they need good reasons to do so, and it helps if their opinion is unanimous or nearly so. Otherwise, their rulings appear (and are) arbitrary — even, shall we say? — partisan.

In those classroom discussions almost 50 years ago, Hillary’s hand was always first in the air. When she was called upon, she gave perfect answers — whole paragraphs, precisely phrased. She distinguished one case from another, using precedents and stare decisis to guide her thinking. I was awed.

My hand was in the air about half the time, and when called on, my answers were meh.

Clarence’s hand was never in the air. I don’t recall him saying anything, ever.

Bill was never in class.

Only one of us now sits on the Supreme Court. And he has shown no respect for stare decisis.

Nor has he respected judicial ethics.

A federal law — 28 U.S. Code § 455 — requires that “any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”

In the aftermath of the 2020 election, Thomas’s wife, Ginni, actively strategized with White House chief of staff Mark Meadows on overturning the election results. Between Election Day 2020 and the days following the January 6th attack on the Capitol, she exchanged 29 text messages with Meadows, in which she spread false theories about the election, urged Meadows to overturn the election results, and called for specific actions from the White House to help overturn the election. She also served as one of nine board members of a group that helped lead the “Stop the Steal” movement and called for the punishment of House Republicans who participated in the U.S. House Select Committee investigating the January 6th attack.

Yet Clarence Thomas has repeatedly participated in cases that have come to the high court directly or indirectly involving the 2020 election results, refusing to disqualify himself.

In addition, he failed to disclose his wife’s income from her work at the Heritage Foundation, in violation of the Ethics in Government Act.

Finally, there’s his speech last week in Austin. How can Americans be expected to believe in the impartiality of the Supreme Court in general and Clarence Thomas in particular when he condemns an entire philosophy of government — progressivism — and all the people who continue to call themselves progressives, in effect labeling them neo-fascists?

At the start of his speech last week in Austin, Clarence Thomas noted that “My wife Virginia and I have many wonderful friends and acquaintances here, and it is so special to have our dear friends Harlan and Kathy Crow join us today.”

He was, of course, referring to the Republican mega-donor who has spent the last twenty years lavishing Thomas with personal gifts, luxury yacht trips, fancy vacations, and funding for Ginni Thomas’s political organization.

Small wonder that Clarence Thomas prefers the Gilded Age over the Progressive Era. He’s the living embodiment of The Gilded Age’s public-be-damned excesses.

Hence, he’s my nominee for the worst justice in modern Supreme Court history.

• Robert Reich is an emeritus professor of public policy at Berkeley and former secretary of labor. His writings can be found at https://robertreich.substack.com/. His new memoir, Coming Up Short, can be found wherever you buy books. You can also support local bookstores nationally by ordering the book at bookshop.org