A14 EZ RE THE WASHINGTON POST.SUNDAY, MAY 15 , 2022
supreme courtBY ROBERT BARNESThe leak of a draft opinion
regarding abortion has turned
the Supreme Court into a place
“where you look over your shoul-
der,” Justice Clarence Thomas
said Friday night, and it may
have irreparably sundered trust
at the institution.
“What happened at the court
was tremendously bad,” Thomas
said in a conversation with a
former law clerk at a conference
of conservative and libertarian
thinkers in Dallas. “I wonder
how long we’re going to have
these institutions at the rate
we’re undermining them. And
then I wonder when they’re gone
or destabilized, what we’re going
to have as a country.”
It was second time in a week
that Thomas has decried declin-
ing respect for “institutions”; he
made similar remarks at a con-
ference of judges and lawyers.
Thomas, 73, said the leak has
exposed the “fragile” nature of
the court.
“The institution that I ’m a p art
of — if someone s aid that one l ine
of one opinion would be leaked
by anyone, you would say, ‘Oh,
that’s impossible. No one would
ever do that,’ ” Thomas said.
“There’s such a belief in the rule
of law, belief in the court, belief
in what we’re doing, that that
was verboten.”
He continued: “A nd look
where we are, where now that
trust or that belief is gone
forever. And when you lose that
trust, especially in the institu-
tion that I’m in, it changes the
institution fundamentally. You
begin to look over your shoul-
der. It’s like kind of an infidelity,
that you can explain it, but you
can’t undo it.”
He made the remarks Friday
night at a conference sponsored
by the American Enterprise In-
stitute, the Manhattan Institute
and the Hoover Institution. In
front of an approving crowd, he
was pointed and accusatory; he
seemed to blame law clerks who
work at the court for the leak of a
draft opinion written by Justice
Samuel A. Alito Jr. that would
overturn Roe v. Wade , and he
appeared distrustful of some of
his colleagues.
“A nybody who would, for ex-
ample, have an attitude to leak
documents, that general attitude
is your future on the bench,”
Thomas said. “And you need tobe concerned about that. And we
never had that before. We actual-
ly trusted — we might have been
a dysfunctional family, but we
were a family.”
Just as Alito had done in a
speech the night before at the
Antonin Scalia Law School at
George Mason University in Vir-
ginia, Thomas skipped past the
usual bonhomie that justices ex-
press about their colleagues —
that they disagree vigorously but
respect and admire each other.
Asked about that by a ques-
tioner, who wondered how a
friendly respect for ideological
differences could be fostered in
Congress and other institutions,
Thomas replied: “Well, I’m just
worried about keeping it at the
court now.”
As he had the week before, he
praised a previous court — one
headed by Chief Justice William
H. Rehnquist and with Justice
Stephen G. Breyer as its juniormember — as a “fabulous court.”
It ended with the appointment of
Chief Justice John G. Roberts Jr.
after Rehnquist’s death in 2005,
and now only Thomas and Brey-
er, who retires at the end of the
term, remain.
“This is not the court of that
era,” Thomas said. “I sat with
Ruth Ginsburg for almost 30
years, and she was actually an
easy colleague for me. You knew
where she was, and she was a
nice person to deal with. Sandra
Day O’Connor you can say the
same thing; David Souter, I can
go on down the list.”
“The court that was together
11 years was a fabulous court. It
was one you looked forward to
being a part of,” he said.
Thomas was in conversation
with a former law clerk, John
Yoo, a professor at the University
of California at Berkeley. Yoo did
not ask the justice about recent
controversies involving Thom-
as’s wife, Virginia “Ginni” Thom-
as, who was a staunch defender
of President Donald Trump and
whose text message exchanges
with Trump’s chief of staff re-
garding legal schemes to chal-
lenge Trump’s 2020 election loss
have come to light.
Before those numerous text
messages were published by The
Washington Post and CBS News,
Thomas was the only member of
the court to side with Trump’s
request to withhold White House
documents from the congres-
sional committee investigating
the Jan. 6, 2021, riot at the U.S.
Capitol. Thomas did not explain
his vote in the court’s short order
denying Trump’s emergency re-
quest, and Democrats in Con-
gress have cited his participation
as evidence of a need for a
stringent ethics and recusal codeat the Supreme Court.
Thomas briefly recounted bat-
tles with the left, which he said
tried to keep him off the court
“because of abortion.” While say-
ing at his confirmation hearing
that he had never considered the
correctness of Roe , Thomas
joined an opinion just months
later saying the precedent should
be overturned.
Thomas said conservatives
have never employed the harsh
tactics of the left.
“You would never visit Su-
preme Court justices’ houses
when things didn’t go our way,”
Thomas said. “We didn’t throw
temper tantrums. I think it is
incumbent on us to always act
appropriately and not repay tit
for tat.”
Asked if conservatives were
living up to the “mantra” of
civility in politics, he said:
“They’ve never trashed a Su-
preme Court nominee. The most
they can point to is Garland did
not get a hearing, but he was not
trashed.”
Thomas was referring to At-
torney General Merrick Garland,
who as an appeals court judge
was President Barack Obama’s
nominee to the court after Scalia
died in 2016. Sen. Mitch McCon-
nell (R-Ky.), then the Senate
majority leader, refused to
schedule a confirmation hearing.
“It was a rule that Joe Biden
introduced, by the way, which is
you get no hearing in the last
year of an administration,”
Thomas said. He d id not mention
that Republicans pushed
through Justice Amy Coney Bar-
rett’s nomination to replace
Ginsburg just weeks before Elec-
tion Day in 2020.
Thomas did not speak directly
about any of the issues before thecourt, but he was asked about
stare decisis, the doctrine that
generally says past decisions of
the court should be respected
and rarely overturned. It is ad-
dressed at length in Alito’s draft
opinion that would overturn Roe.
On the current court, Thomas
is the least loyal to the doctrine.
“When someone uses stare deci-
sis, that means they’re out of
arguments,” he said. “They’re
just waving the white flag.”
At another point, he lamented
those who lack “courage.” He
continued: “Like they know what
is right, and they’re scared to
death of doing it. And then they
come up with all these excuses
for not doing it.” It was not clear
whether he was referring to
some of his conservative col-
leagues, whom he has criticized
in past opinions for not moving
quickly enough to right what he
has seen as wrongs in the court’s
past decisions.
Under Yoo’s questioning,
Thomas offered up a familiar list
of grievances: liberal Yale Law
School, where he received his
degree; intolerance of conserva-
tive views on college campuses;
and “elites.”
In a room filled with Black
conservatives, Thomas talked
about being free to make his own
choices, which have put him at
odds with the political views of
many other African Americans.
“People assume that I’ve had
difficulties when I’ve been
around members of my race,”
Thomas told Yoo. “It’s just the
opposite. The only people with
whom I’ve had difficulties are
White, liberal elites who consid-
er themselves the anointed and
us the benighted.... I have never
had issues with members of my
race.”Thomas says abortion case leak has eroded trust within Supreme Court
DREW ANGERER/GETTY IMAGES
Justice Clarence Thomas, seen in 2021, joined an opinion soon
after joining the court in 1991 saying Roe should be overturned.‘ You begin to look over
your shoulder,’ justice
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