Editor’s Note: Lisa A. Tucker is an associate professor of law at Drexel University’s Thomas R. Kline School of Law. She conceived of and edited the forthcoming “Hamilton and the Law: Reading Today’s Most Contentious Legal Issues through the Hit Musical.” The opinions expressed in this commentary are her own. View more opinion at CNN.
“I would have gone further.”
If you follow the Supreme Court, you probably know that “I would have gone further” is a maxim usually associated with Associate Justice Clarence Thomas, given that he often has a more extreme view of the Constitution than his fellow justices. And even if you don’t, you’ve probably gotten the basic idea that “CT,” as he’s called around the Supreme Court building, is — in Sesame Street-ese — not like the others, even the other conservative justices.
Until the court took its arguments virtual, he almost never asked questions of advocates. Unlike other justices who teach courses in Austria during the court’s recess, Thomas spends his summers driving around the country in his RV, often parking overnight at the nearest Walmart. And he’s known to many as the court’s most loyal conservative — so much so that his dissents often carry a “why stop here?” kind of parlance.
“Going further” is a position he seems to be taking with respect to his tenure on the court as well. Nominated and confirmed in 1991, Thomas is the longest-serving current justice, and already in the Top 20 for longest-tenured justices ever, despite the fact that two others are considerably older than he is.
For almost thirty years, progressives like me have shrunk back in horror at the thought that Thomas’s outlier view of the Constitution might eventually become law. In many dissents, he has advocated for gun rights, against abortion, for government establishment of religion, and against school speech. We don’t like Thomas’s approach to those cases. But in the case of whether Thomas decides to stay on the court as he approaches his 30th anniversary? Going further — in terms of time — sounds great.
It’s not like having Clarence Thomas on the court for another year is something for progressives to celebrate, 30 years or no. In that year, important law could be made and lasting precedent set (although, as we saw in last week’s abortion decision, Thomas, on the whole, does not view precedent as nearly as important as what he considers a “correct” result).
But if Thomas does not follow the recent tradition of justices retiring during or just after the last week of the Supreme Court term, he will almost certainly be on the court until the November election. With polls showing Biden ahead by 10 points, it’s likely that a Thomas vacancy would be filled by a liberal justice, a paradigmatic example of karma coming home to roost.
But you might say even if Thomas retired this week, Trump could not appoint his replacement, right? In 2016, when Justice Antonin Scalia died and President Obama nominated Merrick Garland, Senate Majority Leader Mitch McConnell and friends blocked the nomination, citing the “rule” that no Supreme Court appointments should take place in a Presidential election year.
Yeah, no. Not that it really was a “rule” in the first place, but McConnell weaseled his way out of that one last year, “explaining” that the “rule” had something to do with the Senate and the President and the parties they represented. Republicans would consider replacing Thomas, even later this year, to be fair game. It’s hard to imagine that they haven’t approached Thomas, asking him to consider it. Indeed, just last week, Trump announced that he’ll have a list of potential nominees ready to go by the end of the summer.
Without Thomas, what would the Supreme Court look like? With a Biden victory, one of two things will happen: Its composition of one chief and eight associate justices will remain the same, but Biden will nominate younger liberals to the court to replace Ruth Bader Ginsburg and Stephen Breyer, both past the age of 80; or his administration could change course to follow the advice of some to convince Congress to add additional seats which a President Biden could fill. While Biden has strongly opposed the idea of expanding the court, it’s an idea that has gained popularity in the Democratic Party.
If the court is still “The Nine,” a retirement by Justice Samuel Alito is a strong possibility in the next year or two, as rumor has it that his family is ready to leave Washington, DC. If Biden has the opportunity to appoint a liberal replacement for a conservative stalwart, Thomas could be more heavily outgunned, outmanned, outnumbered and out planned than he is now. What would that mean? That his predictable votes for far-right interpretations of the Constitution would be even further outnumbered by those of the progressive wing, especially as Chief Justice John Roberts increasingly (albeit unreliably) sides with his liberal peers on some important social justice issues.
Even if Thomas decided to go further and further and further, his decision not to retire this week might well present an opportunity for progressives to replace him. First, consider Thomas’s age. Sure, he’s “only” 72 (he celebrated a birthday last month), and other justices have served well into their 80s. But there’s a real chance that Thomas would also have to serve into his 80s to prevent a President Biden or a Democratic successor from replacing him with a young liberal.
But it’s an uncertain proposition at best. As his predecessor Thurgood Marshall explained upon his reluctant retirement at the age of 82 under a Republican President, “I’m getting old and coming apart!” One of Thomas’s close friends recently stated that Thomas will “die on the court.” Marshall had similarly declared that he had “a lifetime appointment and … intend[ed] to serve it.” But some years later, Marshall was forced to admit the impossibility of that plan. He stepped down. Thomas was his replacement.
And so, we wait. And we speculate. And we wonder: Is this the week that Clarence Thomas decides that he has gone far enough?