Clarence Thomas and the politicization of the Supreme Court
Justice Thomas has accused others of politicizing the court, but he's guilty of doing so, too.
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Scalia isn’t much better. In December he met in a closed-door session with Michele Bachmann’s Tea Party Caucus, a group formed in large part to fight for the repeal of health-care reform. Can you imagine the firestorm if Justice Sonia Sotomayor met in secret with the House Progressive Caucus?Skip to next paragraph
Robert is chancellor’s professor of public policy at the University of California at Berkeley. He has served in three national administrations, most recently as secretary of labor under President Clinton. Time Magazine named him one of the 10 most effective cabinet secretaries of the last century. He has written 13 books, including “The Work of Nations,” his latest best-seller “Aftershock: The Next Economy and America’s Future," and a new e-book, “Beyond Outrage.” He is also a founding editor of the American Prospect magazine and chairman of Common Cause.
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Even Thomas’s choice last weekend of the Federalist Society as a venue to air his grievances about his critics reveals his affinity for partisan politics. The Federalist Society, after all, is a well-established network of conservative lawyers and politicians dedicated to rolling back regulations. It’s financed in part by the Koch brothers.
Look, I’m not so naive as to believe that Supreme Court justices don’t have political views and values. The point is precisely the one Thomas himself made last weekend: If the Court is perceived by the public to be politically partisan, it loses the public’s confidence. That confidence, as described by Justice Stephen Breyer in his impassioned dissent in Bush v. Gore (a case like Citizens United that could be understood only in partisan political terms) “is a public treasure. It has been built slowly over many years” and is a “vitally necessary ingredient of any successful effort to protect basic liberty and, indeed, the rule of law itself.”
When Clarence Thomas and Antonin Scalia go to secret political strategy sessions with Republican partisans they jeopardize everything the Supreme Court stands for. They make a mockery of the common sense of Americans.
If it wants to maintain its legitimacy the Court has to appeal to that common sense rather than to partisan politics. As Justice John Paul Stevens wrote in his dissent to Citizens United:
At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.
Citizens United is an illegitimate decision, arrived at by at least two justices who should never have participated in it.
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