Discover more from PREVAIL by Greg Olear
How to Fix the Supreme Court, Part One: C is for Clarence
To bring the balance back, shine a light on Lamp.
“If everyone made war only according to his own convictions, there would be no war,” Prince Andrei Bolkonsky thought…
A good player who loses at chess is genuinely convinced that he has lost because of a mistake, and he looks for this mistake in the beginning of the game, but forgets that there were also mistakes at every step in the course of the game, that none of his moves was perfect. The mistake he pays attention to is conspicuous only because his opponent took advantage of it.
—War and Peace (Leo Tolstoy, 1867)
Three Generations of Imbeciles are Enough.
—Buck v. Bell (Oliver Wendell Holmes, Jr. 1927)
They got lies so big
They don't make a noise
They tell 'em so well
Like a secret disease
That makes you go numb
—“When the Lie’s So Big” (Frank Zappa, 1988)
Guest Column by Moscow Never Sleeps
NOVEMBER IS FINALLY OVER. Joe Biden is the presumptive next President of the United States. There are two open Senate seats in Georgia which will not be resolved until January runoffs, but which Democrats need to win to save the Senate from the purple paws of Mitch McConnell. Assuming those two seats go blue, the two parties are tied at 50-50. Vice President Kamala Harris would break any ties, confirming President Biden’s judicial appointments for vacated or expanded seats on the Supreme Court.
That’s all the foreplay for tonight. Flip on the blacklights and the lava lamp, put on Herbie Hancock’s “Chameleon,” and let’s get down with our bad selves: Professor Never Sleeps is going to walk you through how a Biden Administration (if it has the balls 80 million people hoped it would) is going to rebalance the Supreme Court. Because notwithstanding the GOP’s monthly remonstration about “liberal activist judges,” the last time that the majority of the Supremes were Democratic appointments was in the last year of the Johnson Administration. Getting us back to anywhere near that is as simple as ABC—Amy, Brett, and Clarence.
But first, as with any good dirty movie, let’s set some ground rules for the action. In this film, nobody uses the I-word. This is an impeachment-free set. No iPorn here. Forget your fantasies of making Kavanaugh cry again, Thomas sputter again, Barrett smirk over her empty slate again, all on TV. We don’t have the time for a six-month process of impeachment in the House and then referral to the Senate for trial, just to face the cold mathematical fact that 50 is always going to be a significantly smaller number than 67. The media will portray as a circus what is in fact a farce, and we are going to look, as usual, like we don’t know how this game is played.
And even when it fails, any attempt to remove a sitting Justice by way of Articles II and III is going to set a terrible example. No Justice has ever been removed by Congress. The last and only SCOTUS impeachment was during the Jefferson Administration; Associate Justice Samuel Chase was ultimately acquitted. The most recent attempt to start impeachment proceedings was when Nixon asked his personal Jim Jordan in the House, Gerald Ford, to introduce articles against William O. Douglas. The motion went nowhere because it was clear in Justice Douglas’s case, as it had been in Chase’s, that the only true complaint was the substance of Wild Bill’s opinions. As a democracy, we have not yet gotten to the point where we publicly pillory and cashier our federal judges for the way they rule, and we don’t want to be. Even if we successfully remove one or two Justices for cause, the other side will impeach them for sport, and we will wind up with a court system even Russians would be ashamed of.
Historically, there are three other ways to remove or neutralize problematic members of the Conference, without the math problem in the Senate, without the punditry and prurience, and without creating precedents that are not already honored, even honorable, traditions in political tradecraft. Each of these relates, in reverse chronological and alphabetic order, to the Justices named above.
Starting backwards from C:
Back before I practiced law in Russia for several decades, I was your typical student at a bulge bracket urban law school, in the early 1990s. The Clarence Thomas/Anita Hill debacle hit right in the first semester of my 2L year, distracting all of us galley slaves in our North Philly dungeon from the arctic job market that the Bush Recession had wrought. Almost 30 years later, I can still recall a certain middle-of-the-road Democratic pol from around the block (whose teeth weren’t yet quite as obviously fake as his plugs) try to manage the unexpected shitshow exploding on his Judiciary Committee. This hapless chairman was faced with competing interests: how to appear fair to the nominee, how to appear compassionate to the witnesses, how to corral the other restive members on both sides of the committee, how to avoid the wrath of Bush 41 (who considered Thomas a return favor for sending a moderately liberal David Souter across the Hill the previous year), and generally how not to look like the gormless shlemozel who had only three years earlier been ratfucked out of the 1988 primaries by that egghead shlemiel Mike Dukakis. So at the end of the day, the nice young man with my father-in-law’s NEPA accent stopped taking corroborating witnesses and let Thomas, with no recommendation, slide like a painful kidney stone out of his committee, to an up-or down floor vote that the nominee survived by two votes.
That’s right. The former senior Senator from Delaware is one of the main reasons why we have Fat Urkel-turned-James Earl Vader. The former Vice President is why the Republicans in 2018 knew exactly what to do in the Senate when another one of their Federalist fuckboys had a #MeToo problem. Long Dong Silver is on Uncle Joey’s karmic ledger, at least a bit. So now that 80 million of us have given Sleepy a mandate to Fuck Shit Up, that’s where the fun should start.
Clarence Thomas has been on the court for 29 years. In that time he has performed three judicial functions: First, he is a reliable conservative vote who has rarely if ever swung to join a liberal foursome. Second, he has avoided anything remotely resembling original and persuasive legal writing that might ever be used by anyone in lower courts as precedent in any gray area of Constitutional law. And third, once he had confirmed his title as the dumbest reactionary on the Court in the Twentieth Century, he graciously stepped aside to allow Samuel Alito to claim that honor for the Twenty-First. In other words, he is a total load.
But Uncle Thomas is also 72 years old, and if we don’t get him off now, the next Republican President in four to eight years will replace the sullen houseplant with someone more plutonian than Kavanaugh and younger than Barrett. By 2025, Candace Owen could finish college, get a JD, and be fast-tracked into a robe before her 38th birthday. If the prospect of some cynical GOPOTUS cooperating with some McConnell ghola to ramrod a talentless muppet through to a lifetime appointment on the highest court in the land reaching as far into the future as 2060 strikes you as absurd, remember: in the 1990s, MadTV and The Simpsons had us all rolling on the floor with dystopian “President Trump” jokes.
So, the Big C has to go. As earlier explained, impeachment is not an option. First, unless (a) almost 20 Republican Senators cross the aisle on a third-rail vote or (b) the Democrats somehow (without the other side noticing) magically find 25 new azure-blue states to be admitted overnight to the Union, we just are never going to get a two-thirds Senate vote to remove anyone the GOP considers essential to maintaining power.
Second, for most of the last three decades, Thomas has kept his mouth shut and his hands to himself. Whether by terror, shock collar, good sense, or plain old age, he left his Tone-Lōc days back in the Eighties. In any case, as Susan Collins and Lisa Murkowski proved two years ago, the Senate’s policy on sexual harassment remains “boys will be boys.”
Third, although his wife Virginia Lamp’s loud political activism is a conflict of interest that can be seen from space, everyone in Washington on both sides of the aisle lives in that particular glass house. No elected Democrat older than AOC is going to want to bring the spousal exception up for debate in Congress. Remember Tipper Gore and the PMRC?
Yes, Article II is specific on the topic of bribery, and yes, his wife’s PACs are a thing, but it’s still a hard case to make. Clarence Thomas was a troglodyte long before people started paying his wife to cheer him on. In fact, he is quite possibly the most consistent jurist in the history of the Court: he always votes for the cops against the suspect, for the wealthy against the employee, for the Republican political machine against the disenfranchised voter, and for the church against taxpayers who don’t want to support parochial schools. (About the only surprise to come from three decades of Justice Thomas’s black-and-white judicial worldview is that he proves that there really is such a thing as antidisestablishmentarianism.) C-Dog doesn’t rule this way because he’s getting paid off: this is already the best judge he was ever going to be.
But what is to be done? As stated above, Thomas is 72 and in no apparent physical distress. He isn’t just going to resign from the Brethren and a lifetime federal sinecure as a political favor to Biden. There’s no benefit in for him, and there’s few career opportunities awaiting a man of his very proscribed skill set. Abe Fortas and Arthur Goldberg shucked their robes after brief stints in the 1960s and were soon back in pinstripes earning big city partner money, but I doubt even Republicans are willing to pay for Justice Thomas’s actual legal skills. Once upon a time, men left the Nine to run for high office, but (a) these judges had a previously successful electoral record, (b) they generally lost anyway, and (c) Clarence Thomas’s political skills are probably still no better than his pickup lines were in his EEOC days.
But Justice Thomas might take “Retired” (aka “Senior” for lower federal judges) status. As a Retired justice, he is still technically on the Court—without a vote in Conference, but with full salary and benefits, a reduced staff, the authority (but not the obligation) to hear Circuit cases in emergencies, and the right to make money on the side teaching, speaking, or writing. Justices Brennan and Douglas did that, and even if Clarence Thomas clearly does not have the writing ability of either of the Big Bills, he can still take honoraria to fulminate like Cleveland Brown to a bunch of white robes at the true dangers of a secular legal system. It’s an honorable exit.
The question becomes, how to get Clarence Thomas to voluntarily trade great power and job security for nearly no power but the same job security plus the potential of a bit more cash? The answer is ugly and beautiful at the same time. Like all wives in America, even the ones who pretend to be handmaids, Virginia Lamp Thomas is morally convinced that she is smarter than her husband. Like most wives in America, she is probably right. She’s an educated lawyer, a devout Catholic, a competent writer and speaker, and a conservative white woman who by virtue of her husband’s melanin count is untouchable on charges of racism when she pillories black Democrats. If Washington were a D&D game, she would be a +22 Polemicist. Ginni got game.
She also has managerial responsibility over PAC money in her various organizations with alt-right dogwhistles like “Liberty” and “Heritage” in their names. Maybe she’s not raising it, or spending it, or even getting any of it paid to her. Not actually relevant. Under various lobbying, tax, and corporate laws, as a founder, spokesperson, and/or manager of these 501(c)(3) money sponges, she is still potentially personally responsible for how these tax-exempt First Amendment cash machines record and report their finances.
In class, this is usually where the quiet kid who sits in the back raises her hand and tries the following gotcha: “But Professor, didn’t you say a few paragraphs ago that nobody in Washington wants to start an argument in Congress about how the town’s spouses run the money machines?” Yes, I did. Emphasis on the phrase “an argument in Congress.” Not all federal cases need be made public, and the best pressure is applied in private, where exposure can still be avoided.
Tax-free status is a benefit provided by law, but it requires regular documentary proof that the organization claiming it is legally entitled thereto. Fraud in those documents is a felony, and the person guilty of that felony can be anyone involved in their preparation above a simply clerical level. If the Treasury and Justice Departments of the Biden/Harris Administration do not do a top-down review of the monetary reporting practices of every PAC from the NRA down to the National Association To Protect Televangelists From Tax And Fraud Laws, then I did not get the President I voted for, and neither did you.
This is low-hanging fruit from the point of view of the Executive Branch. Federal inquiries into tax-exempt status are initially an administrative matter. They generally do not require warrants or probable cause. Investigators don’t need to suspect a crime has been committed, nor do they have to argue in court that they had a credible suspicion of wrongdoing. The IRS uses a very simple algorithm when deciding on which filers to audit: whomever the fuck they want to. It’s not appealable in court as long as the investigators remember not to leave the Post-It saying “Political Enemy Persecution File” on the audit letter.
If Joe and Kamala and whatever AG and Treasury Secretary they can get confirmed past McConnell are not complete wimps, Clarence Thomas’s wife’s PACs are ripe for a randomly selected audit. Maybe the feds will find irregularities in the exemption paperwork. Maybe they won’t. Maybe they’ll find income that the Lamp-Thomas household failed to declare or pay taxes on. Maybe they won’t. Maybe they’ll find income that the good judge should have declared on his annual financial disclosures. Maybe they won’t. Sometimes the purpose of a factual investigation is not finding evidence of wrongdoing, but of reminding people that rules are subject to verification. Or, as Zen philosophers might say, the real goal of a journey is not the destination, but the people you intimidate along the way.
I give Ms. Thomas one year, maybe two, of having her political babies smeared in private—but not so privately that the word doesn’t get out to her donors that her kaffeeklatsches are toxic and that she can’t be put on any boards for failure of investigation metastasis—before she puts zvei und zvei together and gets vier. She will go full-on Karen to her assistant manager of a husband, or she might use her wiles. In either case, the substance of the complaint will sound like this:
“Yes, I know I’m getting scrutiny only because I’m married to you. Yes, it’s horribly unfair to us and to the conservative movement as a whole. No, the heat is not going to stop for at least the next four to eight years, by which time I’ll be a senior citizen. No, I’m not expecting you to start wearing dashikis and a natural to the job and start sympathizing with your country cousins on briefs. No, I’m not going to resign from public life; if that Jan Brady Opus Dei Earth Mother You Think I Don’t Know You Spank It To can be a judge, I’m damn sure not going to be a frumpy hausfrau in this town just because I use your last name for the real Catholics. No, the opportunity to play bridge every Thursday night with Ashley Kavanaugh and the other Court wives is not why I went to law school and spent three decades as your conduit to the Federalist Society. No, I’m not telling you that you HAVE to go on Retired status, take the heat off me, and probably triple our household income on speaking fees alone just because I’ve stuck by you since that Sooner sister whose name you still call out in your sleep dimed you out. I’m just saying we can figure out how to use it to advance our common cause. No, we aren’t getting divorced, even if the Pope is considering Vatican III, so I look forward to making your coffee every morning for the rest of your life. Anyway, think it over. I’m sure you’ll make the right choice. And I’ll be right behind you, whatever you choose.”
The time between that conversation and when Clarence Thomas dials John Roberts at home will be measured in units generally used in subatomic physics.
Photo credit: Preston Keres, US Agriculture Dept. Sonny Perdue is sworn in as the 31st Secretary of Agriculture by U.S. Supreme Court Justice Clarence Thomas, April 25, 2017, at the Supreme Court in Washington.