One of the great underappreciated tragic moves by a political figure of my adult lifetime (a time frame that alas now describes far more years than I’d prefer it to) was Thurgood Marshall’s decision to retire from the Supreme Court in late June 1991.
Why tragic? Because he resigned during a Republican presidency. Supreme Court fights weren’t as intense then as they have become, but by 1991 conservative appointees had begun to change the court’s direction, and Marshall’s decision raised some eyebrows. But all was not yet lost—far from it. George H.W. Bush’s first appointment, David Souter in 1990, turned out to be quite liberal, so if Bush had appointed a moderate as his second choice, the court would have remained sanely center-right.
Instead, he appointed Clarence Thomas, whose presence swerved the court hard to the right. He joined with William Rehnquist, Antonin Scalia, Anthony Kennedy, and Sandra Day O’Connor to give the high court its first functioning five-member conservative majority in decades (Kennedy and O’Connor would later moderate their views on some matters but were certainly part of that 1980s-’90s conservative bloc).
And why is all this an underappreciated tragedy? Because Marshall died on January 24, 1993—the fifth day of Bill Clinton’s presidency. That is, if Marshall had not retired but had served his full life term, Clinton would have named his successor. There would have been no solidified 5–4 conservative majority. And most of America never would have heard of Thomas, who would have ended up where he belonged: a time-serving, hatchet-man GS-15 appointed during Republican administrations to try to destroy the mission of whatever unfortunate branch of government he ended up running, and tolerated at Federalist Society dinners as the guy who thinks he’s more charming than he is and talks a little too much about male porn stars’ penis sizes.
Instead, we behold one of the most influential associate justices in modern history, if only because of the longevity of his service; also, the most plainly corrupt Supreme Court justice since … well, maybe since ever. I just Googled “most corrupt Supreme Court justices,” and of course the search returns the expected rogues’ gallery of reactionaries and bigots and loafers, but I note a surprising dearth of swindlers, grifters, and bribe-takers. Indeed, only one Supreme Court justice has even been impeached—Samuel Chase, in the early days of the republic—but that was for naked partisanship on the bench, not corruption as we define it today. So, since Thomas is both a world-historical reactionary and a world-beating grifter, he is likely the single worst Supreme Court justice of all time.
ProPublica’s report last week is jaw-dropping. In the end it shows this: Thomas used to report his gifts from right-wing billionaire Harlan Crow. Then they became a little controversial. So what did Thomas do? Stop accepting the gifts? That’s what you or I would do, or at least make them far less frequent and ostentatious. But Thomas doesn’t think like you or I do. He thinks: How I can twist the dagger into the liberal establishment’s flesh even further? So rather than stop accepting the gifts, he just decided to stop reporting them. Which ProPublica says is against the law.
Can he be impeached? Not now, with the GOP in control of the House. If that changes, sure, they can try, as Alexandria Ocasio-Cortez and others have suggested. Of course, he would be acquitted in the Senate, where two-thirds are required to convict (indeed, Samuel Chase survived).
But that’s no reason for Democrats not to do it. In fact, as I suspect AOC understands, the way partisanship works today in this country, that’s precisely an excellent reason to do it: Have a long hearing that lays bare every instance of his and his wife’s corrupt activities in a high-profile venue that Americans will watch; make the case to swing-voting Americans that he is dishonoring the court’s name and reputation; drive his approval ratings into the toilet (in a 2022 YouGov poll, Thomas already had the highest “very unfavorable” rating of the nine justices, at 32 percent); and force the Republican senators to vote to keep this clearly undeserving, mediocre, arrogant, unscrupulous hornswoggler on the court.
Make him a political issue (not in time for 2024, alas, but in general). Destroy his reputation. If nothing else, ensure that he goes down in history the way he deserves, as one of the most unqualified Supreme Court justices ever, who has gone on to leave as light an intellectual footprint as someone serving three-plus decades could leave. Make him—and his wife, Ginni, who is also completely without scruples in the way she, as the spouse of a Supreme Court justice, entangles herself in our public life—a metaphor for every insidious thing the far-right wing has done to this country.
Shame will never penetrate his conscience, or the circles in which he travels. He’ll continue to stay in Harlan Crow’s luxurious homes and smoke his pricey cigars and fly on his tricked-out jets. When he dies, they’ll hold a funeral like Victor Hugo’s in Paris. Or try to. That’s exactly why Democrats and the broad left should launch a preemptive strike against his lionization. For the sake of history, make him the pariah he deserves to be.
Democrats don’t get this. I do see that 16 Democrats, eight from each house of Congress, signed a letter last week requesting—not demanding, mind you, just requesting—that John Roberts launch an investigation into Thomas. (Very conspicuously absent from the letter: Illinois Senator Dick Durbin, who’s only the chairman of the Senate Judiciary Committee, after all.) That’s fine. But it’s patty-cake. We’ve seen how aggressive Roberts’s internal investigations are. He will do nothing.
Democrats and liberals, it is often said, are “process-oriented,” which means that they respect process and they think rules-bound means leading to rational ends. The “proper venue” for scrutinizing Thomas is the court itself; then perhaps tougher application of ethics laws (which is up to the court’s justices); then, if all else fails, maybe impeachment, but most Democrats would be terrified of that.
What they don’t understand, which Republicans do, is that no one pays attention to all that. People pay attention to narrative. Clarence Thomas is already a mocked and disrespected figure in American public life, which is not thanks to Democrats, really, but to great reporters like the ProPublica trio (Joshua Kaplan, Justin Elliott, and Alex Mierjeski) and The New Yorker’s Jane Mayer and The New York Times’s Danny Hakim and Jo Becker and others who’ve done the digging that, as far as we know, Democrats in Congress with vast investigative staffs and budgets have never bothered to do.
Journalists started the job. Democrats have to finish it. They may never remove Thomas from the bench, but they can drive home a story that most Americans already seem to believe anyway: that Clarence Thomas is an embarrassment to the Supreme Court and the country, and the worship of this man on the right is one of the greatest symbols of their contempt for standards, the law, precedent, and democracy.
Make Thomas-worship hurt. If nothing else, Democrats, remember: Thurgood Marshall, whom you claim to love and whose seat has been tarnished by Thomas almost beyond repair, is watching you.
