Republished with permission from Lucian K. Truscott IV
The year 1991 marked a dark spot in our nation’s history when it comes to the rule of law and the people who determine what the law is. I’m talking about the day Clarence Thomas was confirmed to that august body.
Today I look back to the confirmation battle over Clarence Thomas open-mouthed. He faced serious allegations from a serious woman that he had sexually harassed her at her job in the Department of Education and the Equal Employment Opportunity Commission (EEOC). The ironies abound right there. Two Black lawyers were working in two departments of the federal government that only two decades previously would probably not have hired either of them in the positions they held. The EEOC was established via the Civil Rights Act to investigate discrimination based on race, national origin, sex—including, these days, sexual orientation and gender identity—religion, age and disability, among other factors.
And yet there was Clarence Thomas, a sexual harassment machine running amok at the EEOC, as we would later learn in the book, Strange Justice: The Selling of Clarence Thomas, by Jane Mayer and Jill Abramson, the very place that would in later years be at the center of complaints of sexual harassment in the workplace.
The way in which Anita Hill’s testimony was handled by the Senate Judiciary Committee was disgraceful then, and looked at from today, even worse than it seemed at the time. Women who would have backed-up Hill’s charges against Thomas were not allowed to testify. Hill was denigrated by Republicans and conservatives as a complainer making way too much of what was deemed to be just verbal horseplay in the office, making little of fact that the man she accused was her boss, not just a fellow worker.
It was a signature moment in the culture wars, and it would be followed by skirmish after skirmish in those wars, some of them having to do with gender, some with sexual orientation, some with gender identity, others with purely employment based disputes. After the Thomas hearings, Congress passed a disputed bill that allowed people to sue in federal court seeking monetary awards for damage, back pay and reinstatement to their jobs.
Thomas was on the wrong side of practically everything. He voted against gay rights at every turn, including same sex marriage. He voted against equal rights on every case that came before the court. He voted against abortion, including Dobbs, that overturned Roe v Wade. In a case from Alabama, one of the Deep South states with the worst record on the racist Jim Crow laws, he voted to defenestrate the Voting Rights Act that ensured Blacks have the right to vote.
At the same time, we now know from a series of articles from ProPublica, Thomas was running amok with the court’s meager ethics rules. ProPublica has covered Thomas’ financial excesses and ethical lapses at great length, recently summing up their reporting this way: “Thomas accepted a stream of gifts from friends and acquaintances that appears to be unparalleled in the modern history of the Supreme Court. Some defrayed living expenses large and small—private school tuition, vehicle batteries, tires. Other gifts from a coterie of ultra rich men supplemented his lifestyle, such as free international vacations on the private jet and superyacht of Dallas real estate billionaire Harlan Crow.”
All of this from the man who got on the court because a bunch of men, Republicans and Democrats alike, decided that the word of an aggrieved woman was not worth as much as that of the man she accused of sexually harassing her at the place where she earned her living.
Clarence Thomas began the long, slow slide of the Supreme Court into its current disgraceful state. He’s been a reliable if not leading vote again and again in the conservative campaign to undo the decisions of the Warren Court which lead a decades-long recognition of the rights of citizens under the Constitution. Now Thomas has joined in what appears to be the court’s forceful march to restrict rights if not cancel them outright, as in Dobbs.
There is a case that can be made that the Supreme Court’s slippage from its esteemed place in the Constitutional troika of governmental powers is not a liberal-conservative matter. It’s more complex than that, and much worse: it is a failure: A failure to uphold standards that date to the nation’s founding, a failure of some justices to recognize their role as interpreters of the constitutionality of laws, not historians given the power to turn back the clock to a time when they think things were simpler and more straightforward.
The citations in recent court decisions on guns and abortion to state laws regarding both issues in the 1700’s and 1800’s is perfect example. One justice even went so far as to refer to what the laws were on abortion in a territory before it formally became part of the United States. What was the relevance of a reference such as that? Well, the territorial law in question was in agreement with the determination of the justice in question to ban abortion, that’s what.
The Supreme Court seems to have created for itself a gigantic memory-hole when it comes to what the laws were like in general in this country during the time they look back on with such fondness. The rights of women are in that hole, because basically, women had none, which seems to matter not to the right-wing justices on this court, Thomas among them. Women could not vote at the time all those state laws were being made in the 1800’s forbidding abortion. But hey, the Supreme Court says, what does that matter?
The recent story in the New York Times on what occurred behind the scenes of the Dobbs decision reads like a transcript from a bug in the Ravenite social club on Mulberry Street, where the mob met and did its nefarious business. It reveals a court that was plotting, not reasoning, doing the business of a faction of a political party rather than the nation at large.
And now we have the news that Colorado has banned Donald Trump from the state’s 2024 presidential ballot because he was found to have committed insurrection The idea that this court…this one, the one that is disgracing itself by the day…will doubtlessly be ruling on how the 14th Amendment is to be applied in the upcoming election is, given this court’s history, nearly unthinkable. But here we are, and we’re going to have to live with whatever their decision is.
We call a lot of the stuff that has driven the descent of the court culture war issues — on guns and transgender people and abortion and, coming right up, the existence of a pill that can stop a pregnancy and the right to mail these pills to patients (!). But culture war doesn’t adequately describe what’s going on. These are issues of modernity versus antiquity. Clarence Thomas, and the arch-conservatives who followed him onto the court, treat the Constitution like it is a piece of shiny mahogany furniture in their living rooms that simply needs to be polished once in a while. They have forgotten, if they ever knew it in the first place, that furniture is inanimate. It doesn’t live and breath like human beings do, and that’s where the big break is. Thomas and the rest of them are happy with the Constitution the way they see it because it’s not alive; it can’t look back at them and observe what they do.
But we are the people whom the Constitution was written to serve, and we can see the people on the Supreme Court, and according to every poll taken over the last decade, more and more of us don’t like what we see.
That’s because Thomas and Alito and Gorsuch and Kavanaugh and Barrett and Roberts are in the process not just of shredding our rights but shredding the court itself. At a time when one of the two people running for president of the United States is openly plotting to overthrow our democracy and shred the way we govern ourselves, it seems almost too much to behold all at once.
Nobody said self-government was supposed to be easy, and it’s not. It’s not a culture war that we’ve been fighting. It’s a war for our freedom, and the weapon we have been given to fight it is our vote.
Lucian K. Truscott IV
Lucian K. Truscott IV, a graduate of West Point, has had a 50-year career as a journalist, novelist and screenwriter. He has covered stories such as Watergate, the Stonewall riots and wars in Lebanon, Iraq and Afghanistan. He is also the author of five bestselling novels and several unsuccessful motion pictures. He has three children, lives in rural Pennsylvania and spends his time Worrying About the State of Our Nation and madly scribbling in a so-far fruitless attempt to Make Things Better.