On the verge of a new term in which the Supreme Court will wade back into the culture wars, Justice Clarence Thomas reflected Thursday on the role of the judiciary and warned against judges weighing in on controversial issues that he said are better left to other areas of government.
“When we begin to venture into the legislative or executive branch lanes, those of us, particularly in the federal judiciary with lifetime appointments, are asking for trouble,” he said during a sweeping lecture at the University of Notre Dame that also touched on themes of equality, race and the state of the country.
The problem, the justice said, has bled into the nomination and confirmation process.
“I think that is problematic and hence the craziness during my confirmation was one of the results of that,” Thomas said, adding that “it was absolutely about abortion — a matter I had not thought deeply about at the time.”
Thomas’ remarks come as the newly solidified conservative majority will consider a direct challenge to Roe v. Wade in the term that begins in October as well as a major Second Amendment case and possibly a dispute centering on affirmative action. In addition, the court earlier this month sparked outrage among supporters of abortion rights when a 5-4 majority allowed a controversial six-week abortion ban in Texas to take effect pending appeal.
Of all the members of the high court, Thomas has made his views on Roe v. Wade, the 1973 case that legalized abortion across the US, crystal clear. In 2007, he said that he believed that Roe and the follow-up decision called Planned Parenthood v. Casey had “no basis in the Constitution.” And in 2020, he said that Roe is “grievously wrong for many reasons, but the most fundamental is that its core holding — that the Constitution protects a woman’s right to abort her unborn child — finds no support in the text of the Fourteenth Amendment. ”
Some of those in the progressive wing of the Democratic Party see adding seats to the court as the only way to protect landmark decisions like Roe.
Although he did not directly address the issue of so-called court packing, Thomas seemed to nod to the controversy.
“We have lost the capacity” as leaders “to not allow others to manipulate our institutions when we don’t get the outcomes that we like,” he said.
Thomas, appointed by then-President George H.W. Bush in 1991, is currently the longest-serving justice. Noting his 30 years on the bench, Thomas said Thursday that while the institution may be flawed, it works.
“I think we should be careful destroying our institutions because they don’t give us what we want when we want it,” he said. “I think we should be really, really careful.”
The 73-year-old justice dedicated the bulk of his lecture to the Declaration of Independence, weaving in his own personal story of growing up in the segregated South. Despite the pervasive racism, he said, he was taught about the value of equality.
“I am a product of the state of Georgia,” he said, adding that he had grown up in a world that was “quite different than the world of today.” In the 1950s and 1960s, he said, there was “quotidian and pervasive segregation and race-based laws, which were repulsive and at odds with the principles” of the country.”
But despite that, Thomas said, in his community there was also a focus on a “deep and abiding” love for the country and a “firm desire to have the rights and the responsibilities of full citizenship regardless of how society treated us.”
Having grown up knowing he was “a child of God,” Thomas said, there is “no force on this Earth that can make me any less than a man of equal dignity and equal worth.”
“This accepted truth reinforced our proper roles as equal citizens, not the perversely distorted and reduced role offered us by Jim Crow — a role that is not unlike the reduced but apparently more palatable image of Blacks that is bandied about or assigned to us today,” he said.
Thomas’ lecture follows public appearances from other justices ahead of the court’s new term, including Justice Stephen Breyer, who has been promoting a new book, and Justice Amy Coney Barrett, who recently delivered a speech at the University of Louisville.
