One conceit lawyers allow ourselves is to repeat the platitude that we are nation of laws, not men.  Laws pass through men to get to us, and exist only as the vision of a majority of nine say they do.  If it was so clear and easy, we wouldn’t need the nine to explain it to us over and over again.  We do. They do. And so it’s been since John Marshall started the ball rolling.

One of the nine has taken us to task for “undermining the court and endangering the country by weakening core institutions.”  If true, this is a damning allegation.  In an LA Times op-ed, however, George Washington lawprof  Jonathan Turley argues that Clarence Thomas’ complaints reflect a deeper problem, not with the institution but the speaker.

Louis XIV of France was infamous for his view that there was no distinction between himself and the state, allegedly proclaiming “L’État, c’est moi” (“I am the State”). That notorious merging of personality with an institution was again on display in a February speech by Supreme Court Justice Clarence Thomas before the conservative Federalist Society.



Justice Thomas was fending off attacks based on his wife’s activities, and monies paid in compensation therefore, and the omission of mention in his own financial disclosures.

Virginia Thomas was receiving money from groups that had expressed direct interest in the outcome of cases that came before her husband, including Citizens United vs. Federal Election Commission, in which the court in 2010 struck down limitations on corporate contributions to elections.

A justice is expressly required by federal law to recuse himself from any case “in which his impartiality might reasonably be questioned.” This law specifically requires recusal when he knows that “his spouse … has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding.”

There is little doubt that Justice Thomas’ sympathies, if that’s the right word, would have resulted in the precise same decision in Citizens United and every other case before the Court, regardless of Ginny Thomas’ compensation or endearment to causes.  Nobody suggests that Justice Thomas was, in fact, compromised by the payments.  Still, his failure to disclose that his wife was on the payroll for 13 years isn’t an institutional failure.  It’s a Thomas failure.  One of the nine did wrong.

Yet he offered neither remorse nor explanation.

Instead, Thomas suggested that his critics were endangering freedom by undermining his authority and, by extension, the authority of the court. He insisted that his wife was being attacked because she believes in the same things he does and because they were “focused on defending liberty.” He added:

“You all are going to be, unfortunately, the recipients of the fallout from that — that there’s going to be a day when you need these institutions to be credible and to be fully functioning to protect your liberties…. And that’s long after I’m gone, and that could be either a short or a long time, but you’re younger, and it’s still going to be a necessity to protect the liberties that you enjoy now in this country.”

“Defending liberty” sounds like a wonderful thing.  Like Justice, who would argue against it?  Some of us fail to see Justice Thomas’ or Ginny’s connection to “defending liberty,” but then that’s more a matter of one’s politics and what (and whose) liberty is at stake.  Not be belabor the point, but liberty (like justice) is in the eye of the beholder and check endorser.

Turley see Thomas’ conversion of an attack on him to an attack on the institution as

…Thomas’ Louis XIV moment. Thomas appears to have finally merged his own personality with the institution itself. Thus, any criticism — even criticism that he is harming the court — is an attack on the institution. It is more than an embarrassing conceit; it can be a dangerous delusion for any justice.

But the question is whether Justice Thomas actually believes what he’s saying, or is using well-tested rhetoric designed to enrage his base of support and rally support for the Thomases.  Professor Turley’s indictment of the royal conceit accepts Justice Thomas’ statement at face value.  It strikes me as a stretch.

It would be one thing if Justice Thomas was of the view that the attack was manufactured out of thin air, baseless and frivolous.  Certainly the attack comes primarily from those who disagree with him politically, but that doesn’t mean it isn’t well grounded and accurate.  Indeed, it appears abundantly clear that Thomas deliberately concealed material information from required disclosure.  While it may feed his political enemies, it was his choice to give them the ammo.

Caught with his pants down (metaphorically, at least this time), he’s fighting back, using what he likely believes to be effective talking points amongst his supporters.  He isn’t really suffering from the Louis XIV delusion, confusing himself and the Court.  What he’s doing is worse.

The credibility of the institution of the Supreme Court of the United States isn’t based upon the political persuasions of its members, as much as the integrity, both intellectual and real, of the nine people who are temporary stewards of its high back chairs. 

If Clarence Thomas meant what he said, it could be chalked up to delusions of grandeur, a psychological issue that might well establish him as being a proper representative of Americans who similarly suffer from mental defects.  He might, in fact, be considered sympathetic, maybe even protected.

But if Thomas is spouting inflammatory rhetoric, the talking points of politics to deflect his own wrongdoing, his cheating the court and American people of his honesty and integrity by compounding his deception by omission with affirmative lies, then he has blown his integrity as well.  Before he was just an arch-conservative guy who was usually wrong and didn’t talk too much.  Now, he’s a liar.

Is Justice Thomas psychologically damaged?  Is he so ignorant as to be incapable of understanding that he is but a member of the court, not the institution himself?  I find both impossible to believe, regardless of my thoughts on the thoughtfulness of his politics.  That leaves only the worst of all possible choices to explain Thomas’ rally to the troops.

Oddly, then, Thomas is right to warn that there is something “undermining the court and endangering the country by weakening core institutions.”  That would be one of the nine who has given away his integrity in an attempt to deflect responsibility for his wrongdoing.  That would be Justice Clarence Thomas.  And that isolates him from the rest of the nine.