by Jackie Calmes
It’s that time of year when the life-tenured denizens of America’s imperial court, otherwise known as the Supreme Court, come down from their bench to mix with the masses.
Just kidding. The justices limit their appearances to friendly audiences, to elite folks too well-mannered to ask them about matters like gifts from billionaires with business before the court or misleading confirmation testimony to the Senate.
With oral arguments for this term’s cases ended in late April, the justices are now writing the decisions that will trickle out through June, including on whether to withhold gun rights from domestic abusers; limit access to mifepristone, the pill used for two-thirds of abortions; gut federal agencies’ regulatory power; and immunize Donald Trump from criminal prosecution. Amid their opinion-writing, they accept a few invitations to speak, cracking a window into their thinking as well as their gripes.
Four of the court’s six-member conservative supermajority were on the stump in recent days. Justices Clarence Thomas and Brett M. Kavanaugh spoke to groups of lawyers and judges in the congenial South. Samuel A. Alito Jr., one of the court’s six Catholics, was commencement speaker at “passionately Catholic” Franciscan University of Steubenville, in Ohio. And Chief Justice John G. Roberts Jr. gave a purposely anodyne address to a Washington-based judicial group.
The other three were more interesting. Kavanaugh defensively suggested that the unpopular court’s unpopular decisions would be seen more favorably with time. Thomas whined to a sympathetic crowd about “the nastiness and lies” in the news media about himself and his would-be insurrectionist wife, Ginni; much of that coverage recently won a Pulitzer Prize for ProPublica. And Alito enjoyed a standing ovation when he was introduced as the author of the 2022 Dobbs antiabortion ruling, despite overwhelming opposition to it nationwide.
Kavanaugh spoke last Friday in Austin, Texas. The city is a progressive oasis in the red state, but Kavanaugh appeared before judges, attorneys and court officials connected with the most conservative of the federal appeals courts, the U.S. 5th Circuit Court of Appeals, covering Texas, Louisiana and Mississippi. At a time when the Supreme Court is polling at record lows on job approval and public trust, Kavanaugh was appropriately asked during a question-and-answer session how to boost confidence in the judiciary.
He didn’t seem to see the problem. Instead Kavanaugh blithely compared the current Roberts court — which has greatly expanded rights for gun owners, police and corporations, limited those for voters, consumers and women, and eroded the wall between church and state — to the court of the 1950s and 1960s led by Chief Justice Earl Warren, whose landmark rulings desegregated public schools, expanded voting and other civil rights, ended mandatory Christian prayer in schools and established new rights for criminal defendants.
The Warren court’s decisions were “unpopular basically from start to finish,” Kavanaugh said. And yet “a lot of them are landmarks now that we accept as parts of the fabric of America.”
He’s right about the Warren court legacy. But Kavanaugh is kidding himself if he thinks that Dobbs and other decisions that he has backed will eventually gain widespread favor. The Warren court is remembered for expanding individuals’ constitutional rights; the Roberts court, in overturning Roe, is the first to take one away. (Kavanaugh’s support for Dobbs provoked Republican Sen. Susan Collins of Maine, the decisive vote for his confirmation, to complain that he’d “misled” her during the Senate’s consideration of his nomination.)
Thomas spoke the same day at a conference of the conservative U.S. 11th Circuit Court of Appeals, covering Georgia, Florida and Alabama. His most noteworthy remarks reflected the Roberts court’s other legacy: ethical indifference. The event was held at a luxury resort on Alabama’s Gulf Coast, appropriate given Thomas’ affinity for such places, which has been well documented by ProPublica and other media. Republican donor and billionaire Harlan Crow provided Thomas with yacht trips, real estate deals and other benefits.
Also appropriately, Thomas was with his wife, Ginni, who not only shared the largesse but also is central to Thomas’ other ethical transgression. She worked behind the scenes to overturn Joe Biden’s 2020 election, yet Thomas has refused to recuse himself from three cases before the court dealing with Jan. 6 and Trump’s role in conniving to stay in power.
To hear Thomas tell it, the problem isn’t his conflicts of interest but the critics and we journalists who report on him. “Especially in Washington, people pride themselves in being awful,” he said.
And that’s why he and Ginni like RV-ing across the country to see “regular people.” Thomas didn’t mention that an investigation by the New York Times found that his luxury 40-foot motor home was underwritten by another rich pal.
Alito, another billionaire’s beneficiary, received an honorary degree in Christian ethics on Saturday at Franciscan University. Like Thomas, he groused about his critics; fittingly, he quoted Rodney “I don’t get no respect” Dangerfield. Alito has become known for fussing that Christian conservatives get no respect, even as he and other conservative Catholics dominate the court. Free exercise of religion is “a disfavored right,” he’s carped in the past, and “you can’t say that marriage is a union between one man and one woman.”
In that spirit, Alito warned the Franciscan grads, “When you venture out into the world, you may find yourself in a job or a community or a social setting when you will be pressured to endorse ideas you don’t believe or to abandon core beliefs. It will be up to you to stand firm.”
God knows he does. And so do Thomas and Kavanaugh. The rest of us, the masses, are worse off for their supreme myopia.
