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Thomas Latest Justice to Insist Court Isn’t Political Entity

Sept. 17, 2021, 7:59 PM

Clarence Thomas became the third justice in a week to assert that the court isn’t a political institution, during an appearance at Notre Dame.

“The media makes it sound like you are always going right to your personal preference” when deciding cases, Thomas said Thursday in response to a question following his speech. That view jeopardizes “any faith in the legal institutions,” he said.

Thomas comments came days after similar statements by Justices Stephen Breyer and Amy Coney Barrett and just weeks after the court came under attack for allowing a strict abortion ban to go into effect in Texas.

“It’s obviously not a coincidence,” said NYU law professor Melissa Murray, who suggested that the justices “now feel obliged to defend their non-partisanship.”

Partisan Hacks

The justices’ defense of the court follows calls by progressives to blunt its 6-3 conservative majority by expanding its membership. A commission appointed by President Joe Biden is examining other potential changes to the way the court operates.

“The Court’s legitimacy flows in part from being seen as separate from or above partisan politics,” said David Lat, founder of Original Jurisdiction, a newsletter that covers the judiciary. “The justices have institutional incentives to argue that the Court isn’t political, or is less political than people think,” Lat added.

The justices, though, don’t seem to be convincing critics, particularly those on the left who are still fuming over the way Republicans handled recent Supreme Court vacancies filled by former President Donald Trump.

Skeptics noted that Justice Amy Coney Barrett chose to argue that “the court is not comprised of a bunch of partisan hacks” at a University of Louisville center named for Sen. Mitch McConnell (R-Ky.), the minority leader.

McConnell was instrumental in blocking the confirmation of Barack Obama’s pick to replace Justice Antonin Scalia in 2016. McConnell, who attended the event, also helped ensure the late Justice Ruth Bader Ginsburg’s seat was filled by Barrett prior to the 2020 presidential election.

“The message would probably be better perceived if the justices making these statements could attend to the optics,” Murray said, noting that McConnell, “perhaps more than any other person in the last ten years, has done the most to politicize the court.”

Book Tour

Breyer appeared Sept. 14 on The Late Show with Steven Colbert as part of his tour to tout his latest book, which seeks to dissuade readers that the justices are just “politicians in robes.”

The late-night host questioned Breyer about the court’s ruling earlier this month that allowed a Texas abortion ban to go into effect, citing procedural problems that were specifically inserted into the law to avoid judicial review.

Breyer, who dissented from the Texas decision, suggested that part of the criticism of the court stems from its use of the so-called shadow docket to resolve some important disputes. The shadow docket includes emergency requests that are decided by the justices on a significantly condensed timeline.

“When we have an important case like that—even if it’s procedural—we should have a full proceeding, and not decide on the basis of an emergency motion,” Breyer said.

Blaming the Media

At Notre Dame on Thursday, Thomas put part of the blame on the judiciary in general which he said ventured “into areas we should not have ventured into.”

But both he and Barrett also singled out media coverage of the court.

“The media makes is sound as though you are just always going right to your personal preference,” Thomas said.

“The media, along with hot takes on Twitter, report the results of decisions,” Barrett said, arguing that they fail to explain the nuances of those decisions.

The justices often speak about their approach to judging at these events, which can help inform those nuances. “Judicial philosophies are not the same as political parties,” said Barrett, who described herself an “originalist.”

Both Murray and Lat suggested that the court itself, at least in part, was to blame for how its perceived.

The court isn’t as political as the other branches, Lat said, but “it’s still somewhat political—especially when it comes to hot-button issues.”

“The thing that made talk of reform more pointed than ever” was the Texas abortion ruling, Murray said. “The court did that.”

“The hits just write themselves,” she said.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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