By Dave Andrusko
Four months back, I wrote about “Created Equal: Clarence Thomas in His Own Words.” The documentary was about to open (as they say) in selected theatres beginning at the end of January. Produced and directed by Michael Pack, you can view the trailer here.
I mentioned at the time that PBS was scheduled to air the documentary in May.
Well, tonight is the night: 9pm Eastern Standard Time.
However, it was clearly more than documentary (that includes the fruit of Pack interviewing Justice Thomas for more than 30 hours over a six month period) that prompted Nicholas Casey to post today.
For whatever reason, Justice Thomas, ordinarily a very reluctant questioner during oral arguments, “is newly in the public eye (or ear) as he regularly asks questions during oral arguments that are being conducted by conference call and broadcast live,” Casey writes. In addition to the documentary about Justice Thomas and his more engaged questioning of late, “He was the subject of a recent book, ‘The Enigma of Clarence Thomas,’ which led to a flurry of articles and book reviews on his life and legal thought.”
The “hook” for Casey’s story is interesting, if overly cutesy. Justice Ruth Bader Ginsburg became a “pop culture star,” [aka “The Notorious R.B.G.”] “when her dissents became liberal rallying calls,” Casey writes. Can Justice Thomas “ever be the kind of pop-culture icon to his followers that Justice Ruth Bader Ginsburg has become to hers?”
But the more important reason to read Casey’s piece carefully is something many people, including NRL News Today, have written about. Questions during oral arguments or no questions, the depth, depth, and reach of Justice Thomas’ influence is only gradually becoming evident.
For example, there are the “ numerous former Thomas clerks who have been tapped for the federal bench.” Or the fact
Many conservatives also now see vindication in the way the court has recently begun to adopt Justice Thomas’s thinking. His legal views spent the 1990s and the early 2000s bottled up as dissents and concurrences that his colleagues often did not sign onto. Now, many are becoming the law of the land.
That’s been lost (or ignored or bottled up) for obvious reasons. He has written or signed on to opinions that offered blistering critiques of Roe v. Wade. Last year he wrote a powerful opinion in which he warned, “Technological advances have only heightened the eugenic potential for abortion, as abortion can now be used to eliminate children with unwanted characteristics, such as a particular sex or disability.”
And the prospect of replacing a very liberal pro-abortion icon on the High Court—Thurgood Marshall—with a very conservative, skeptical-of-Roe Clarence Thomas meant (in Thomas’ words) Thomas’ opponents would unleash a “high tech lynching.”
“I mean, come on, we know what this is all about,” [Thomas] says to the camera. “This is the wrong black guy. He has to be destroyed, just say it.”
A concluding thought. Lyle Denniston is always referred to as the “dean” (now dean emeritus) of the Supreme Court press corps. According to Adam Liptak, Denniston offered a “notable” dissent to those who very much like the way arguments are being conducted during the pandemic which includes
hearing arguments by conference call, with the justices asking questions one at a time in order of seniority, and the public allowed to listen in.
But Denniston “did see one bright spot in the telephone arguments,” Liptak writes. “They allowed the public to hear insightful questions from Justice Clarence Thomas, who ordinarily does not participate in arguments held in the courtroom.”
“I am one of the very few, particularly in the media, who have long been impressed with the depth, learning and originality, and the juridical quality, of Clarence Thomas’s work,” Mr. Denniston said. “And I have always thought that the public perception of him was almost to the point of tragic because Clarence Thomas is a much, much better Supreme Court justice than his silence has invited people to conclude.”
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