Justice Thomas on SCOTUS Leak: “You begin to look over your shoulder”
On Friday, Justice Thomas was interviewed by John Yoo, his former law clerk, at an event in Dallas. A recording is available here. I’ve transcribed parts of the video through Otter, and will post some of the highlights here.
First, Yoo asked Thomas if there is “anything going on at the Court these days.” Thomas let out a booming laugh. A few moments later, he got to the question:
The whole idea that your point about institutions, I think we are in danger of destroying the institutions that are required for a free society. You can’t have a civil society, a free society, without a stable legal system. You can’t have one without stability and things like property or interpretation and impartial judiciary. And I’ve been in this business long enough to know just how fragile it is.
Now when Chief Justice Roberts speaks of the Court as an “institution,” he approaches that concept from a PR perspective–5-4 decisions are bad, incoherent 9-0 decisions are good. Thomas could not care what final votes are. Rather, he worries about attacks on the Court by the political branches, and more recently, from within. Next, Thomas turned to the leak.
And the institution that I’m a part of, if someone said that one line of one opinion would be leaked by anyone in you would say that, ‘Oh, that’s impossible. No one would ever do that.’ There was such a belief in the rule of law, belief in the court, a belief in what we were doing, that that was verboten. It was beyond anyone’s understanding, or at least anyone’s imagination, that someone would do that. And look where we are, where now that trust or that belief is gone forever. When you lose that trust, especially in the institution that I’m in, it changes the institution fundamentally. You begin to look over your shoulder. It’s like kind of an infidelity that you can explain it but you can’t undo it.
This quote is quite revealing. Thomas now seems to think there are members of his own Court he cannot trust. We can put to rest the notion that a conservative clerk leaked this information. If a Thomas clerk or an Alito clerk or a Gorsuch clerk gave the opinion to Politico, Thomas would not be looking over his shoulder.
Second, a member of the audience asked Thomas to define stare decisis:
I think there was a word that was used today. That was really interesting, because I think it’s a central word, and it’s ‘courage.’ The way that Walter Williams did it in one of his books from the 1980s is ‘All It Takes Is Guts.’ And I think a lot of people lack courage, like they know what is right, and they’re scared to death of doing it. And then they come up with all these excuses for not doing it.
In several recent decisions, Justice Thomas and the other conservatives have alleged that Chief Justice Roberts and Justices Barrett and Kavanuagh lack “courage.” I’ve written about this theme in my essay, Judicial Courage. Is Thomas here talking about Dobbs? Or speaking more broadly about stare decisis? Next, Thomas analogizes “stare decisis” to waiving a white flag:
So even with stare decisis, you will see in a lot of those instances where people start, they run out of arguments. I always say when someone uses stare decisis, that means they’re out arg
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