Leaked draft opinion on abortion is ‘like some type of infidelity’

US Supreme Court

Judge Thomas: Leaked draft opinion on abortion is ‘like some kind of infidelity’

Judge Clarence Thomas.

Judge Clarence Thomas said on Friday that the leaked draft opinion on abortion destroyed trust among judges and was “like a kind of infidelity”.

Thomas, 73, was speaking during a conference in Dallas sponsored by the American Enterprise Institute, the Manhattan Institute and the Hoover Institution, all conservative groups. He was interviewed by his former UC Berkeley law clerk, law professor John Yoo.

Thomas has long been opposed to Roe v. Wade and is believed to be part of the conservative majority in Judge Samuel Alito’s draft opinion overturning the decision.

The New York Times, Washington Post, CNN, Associated Press and Law.com are among publications with stories about Thomas’s remarks. How Appealing links to additional coverage, while Professor Josh Blackman of the South Texas College of Law in Houston provides comments and excerpts on the Volokh Conspiracy. Blackman has transcribed portions of the notes here.

Thomas said a loss of trust fundamentally changes an institution and you start “looking over your shoulder”. Trust “is gone forever” and it’s “like a kind of infidelity.”

Thomas said the court has changed since it included World War II veterans and he expressed concern about undermining institutions. “Who was it, Ben Franklin, who said, ‘We gave you a republic if you can keep it.’ And I think you have a dish and I hope you can keep it,” he said.

Thomas was referring to an 11-year tenure on the court before the arrival of Chief Justice John Roberts, the New York Times explains.

Thomas also said conservatives would not use the type of tactics liberals are embracing. “They would never visit the homes of Supreme Court justices unless things went our way,” he said. “We didn’t have tantrums.”

He also said that conservatives “never destroyed a Supreme Court nominee.” Although Merrick Garland, now attorney general, didn’t get a hearing on the nomination, “he wasn’t crushed,” Thomas said.

Here are some of Thomas’ lengthy comments, transcribed by Blackman:

• In response to a question asking for comments on leaks and protests:

“Without a stable legal system, there can be no civil society, no free society. And I’ve been in this business long enough to know how fragile it is. And the institution that I belong to, if someone said that a line of someone’s opinion had leaked out, and you’d be like, ‘Oh, that’s impossible. Nobody would ever do that.’ There was such a belief in the rule of law, a belief in the court, a belief in what we were doing that it was forbidden. It was beyond imagination, or at least beyond imagination that anyone would do such a thing. And look where we are, where now that trust or belief is gone forever. When you lose that trust, especially in the institution that I am in, the institution changes fundamentally. You start looking over your shoulder. It’s like a kind of infidelity that can be explained but not undone. And I think you see how it’s going through a whole range of our institutions, whether it’s in the political branches or in the universities. Going from a university to college it was the funny place you weren’t that knowledgeable but boy you were arguing about it all night.

• Continuing the discussion about oppression on campus:

“It’s quite acceptable in all universities, and if they, if we’re there with these institutions, how do we recover? So yes, I think what happened in court is tremendously bad. I think it’s, I wonder, uh, how long we’re going to have these institutions to the extent that we’re undermining them. And then I wonder what we will have as a country when they are gone or destabilized. And I don’t think the prospects are good if we keep losing them.”

• In response to a question from a viewer about friendships on the pitch and how those types of relationships are cultivated elsewhere:

“Well, I’m just worried about keeping it in court now. This is not the judgment of that time. I sat with Ruth Ginsburg for almost 30 years. And she was actually an easy-going 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, David Souter, I can continue the list. Nino was, he could be excited, but then he forgot he was excited. … The dish, which was 11 years together, was a fabulous dish. It was one you look forward to being a part of. As for you, I’ll come back to the point I made about the institutions. What you have to worry about is how you view the legal staff. Recall the last four court appointments, including the most recent one that I was aware of as a court clerk. These legal clerks with these attitudes…”

At this point, Yoo interrupted. Blackman believes Thomas wanted to comment on the attitudes of Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett and new Justice Ketanji Brown Jackson.

• Thomas continued after being interrupted while making a point about legal clerks. Blackman believes that Thomas has changed his mind and direction:

“I just think they’re bringing that anyone who has an attitude about, say, document leaking, that general attitude is your future on the bench. And you have to think about that. And we’ve never had that before. We actually trusted – we might have been a dysfunctional family. But we were a family. And we loved it. I mean you trusted each other. you laughed together They went to lunch together every day. And I can only hope that you can keep it. So who was it, Ben Franklin, who said, ‘We gave you a republic if you can keep it.’ And I think you have a dish and I hope you can keep it.

• In response to the question of what has changed between the previous court and the new one:

“I think what has changed in society, modern or postmodern. I think the attitude has changed. I think when I came into court you still had WWII veterans on the field. There were still people like John Stephens who was a nice man. They had Byron White, a Rhodes Scholar, when Rhodes Scholars were real athletes and number one in their class, NFL football player, Navy veteran. And you had Sandra Day O’Connor. This is a different generation, and we lived on the treasures of that generation. This generation is gone. I’m the only member of the court who was born in the 1940’s. Okay, everyone else is following this now. And… when I came to court, they were born in the 1930’s and 1920’s. And we are now dealing with the generation after the Second World War. And if you see how it’s played out in society, I think you’ll see it in the institution too. So what’s the difference? It’s a different group of people who grew up in a different time. And I don’t know where that will take you, but we know it’s different.”

Many of the stories surrounding Thomas’ comments point to recent revelations that his wife, Virginia “Ginni” Thomas, had sent numerous text messages urging the former White House chief of staff to challenge then-President Donald Trump’s 2020 election defeat using language associated with QAnon conspiracy theories. Yoo didn’t ask Thomas about this controversy.

Yoo has also had its share of controversies. He is known for his controversial legal memos at the US Department of Justice, which said the President had the authority to order rigorous interrogations of terrorist suspects.

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