Why Should Americans Trust the Supreme Court Anymore?

Mitch McConnell is openly lauding Associate Justice Clarence Thomas's "jurisprudence on unborn life."

Why Should Americans Trust the Supreme Court Anymore?
Photo:Photo by Drew Angerer (Getty Images)

It’s really a simple question: Why should Americans trust an allegedly non-partisan institution whose most vocal actors only act on partisan terms?

On Thursday night, the Heritage Foundation (a reactionary think tank that’s been prominent since Reagan started dismantling the social safety net) honored a Supreme Court justice who was installed under questionable circumstances to enjoy a lifetime appointment. Still unsure who I’m speaking about, because you remember how Amy Coney Barrett and Brett Kavanaugh were appointed?

This one is more retro.

I’m talking about Clarence Thomas, whom the Heritage Foundation honored as a “legal titan” whose independent thinking is best seen in his “jurisprudence on unborn life,” according to a speech given at the ceremony by Senate Minority Leader Mitch McConnell (R-Ky.).

“Every time without fail, Justice Thomas writes a separate, concise opinion to cut through the 50-year tangle of made-up tests and shifting standards and calmly reminds everybody that the whole house of cards lacks a constitutional foundation,” McConnell said, according to The Washington Post.

But conciseness does not beget intelligence or even interesting legal thought. Thomas, to be clear, believes that abortion should be outlawed—an opinion that’s out of step with the majority of the American public.

Clarence’s take is not an interesting one from someone who is supposed to be one of the smartest (or arguably the smartest, since he’s been on the court the longest) justices on the high court. You can get that opinion from literally anyone using their one precious life to protest a Planned Parenthood clinic that doesn’t even provide abortion care.

Instead, Thomas is a partisan actor whose reactionary conservatism is now the politics of the majority of the Court. And for 30 years, he has used his bully pulpit to rail against the right to control people’s own medical decisions. Recently, in June Medical Services v. Russo, Thomas became angry at the fact that pro-abortion-rights legal precedents even exist. He wrote: “Our abortion precedents are grievously wrong and should be overruled.”

By Thomas’ calculation, abortion shouldn’t exist because Roe was decided under false pretenses in a court without jurisdiction. Thomas wrote (and briefly quoted his own 2010 writing) later in his June Medical Service dissent: “But today’s decision is wrong for a far simpler reason: The Constitution does not constrain the States’ ability to regulate or even prohibit abortion. This Court created the right to abortion based on an amorphous, unwritten right to privacy, which it grounded in the ‘legal fiction’ of substantive due process.”

His belief boils down to a state-first approach to abortion, with the federal government and judiciary washing its hands of the procedure. It’s not the world we live in, but it is the world he’s spent the last 30 years attempting to create.

Maybe his influence is catching up with him. The Supreme Court’s approval rating is only going down among Americans, with a sharp dip after the court declined to stop Texas’s 6-week abortion ban from going into effect. In July, the court had a 49 percent approval rating, but by late September, only 40 percent of Americans surveyed by Gallup approve of the highest court’s conduct. This is the lowest its approval has been since 2000 when Gallup started collecting such data.

And that’s just the court’s approval ratings. A majority of Americans (53 percent!) disapprove of the Supreme Court’s work. The last time disapproval rates were that high was in 2016 at 52 percent, according to Gallup. In other words, six conservative life-appointed justices are making massive decisions with which the majority of Americans disagree.

Thomas, who is married to a certified kook, is out of step with Americans, who overwhelmingly agree that abortion should be legal. But because we cling to age-old institutions, Thomas’s despicable jurisprudence will reign over the land, and denying us rights to our own bodies will remain a stain on the court for even longer.

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