In late 2021, the State of Texas passed a clearly unconstitutional state law restricting women’s rights to abortion. In December of that year, the Supreme Court met in an informal session to hear arguments from opposing attorneys representing a lawsuit challenging that Texas abortion law. Sessions such as this one, often referred to as the “shadow docket,” invite the attorneys to preview their opening arguments and outline the salient points of their respective cases. While the stated purpose for these sessions is to allow the court to decide which cases merit being heard, the so-called “Roberts Court” has been under fire in recent years for seeming to use the “shadow docket” to cherry-pick cases that pander to right-wing causes, while ignoring cases that do not. The Supreme Court doesn’t allow cameras, but I was able to listen on the radio as the Justices discussed whether or not to consider the Planned Parenthood vs State of Texas lawsuit.     

During the Justice’s questioning, I listened to a hostile, semi-coherent Neil Gorsuch ramble on and wondered if he became a Rhodes scholar in the same way Donald Trump became a Wharton School graduate. Sly fraternity weasel Brett Kavanaugh suggested the court not hear the suit at all, give no particular reasons why, and simply allow the law to stand as written. In the ensuing awkward silence, he went on to further suggest pro-actively repealing any sections of Roe vs Wade that would conflict with the Texas law, making the unconstitutional Texas law “constitutional.” I listened to the crickets …obviously he wasn’t supposed to say that part out loud. After “His Dishonor” Kavanaugh’s crude partisan display, the other Justices spoke in turn, each of them scrupulously avoiding saying out loud what they knew they had made up their collective right-wing mind they were going to do. They knew they were about to do something inherently dishonest that would anger ninety percent of America …then they did it anyway. I instinctively bent over and grabbed my ankles from force of habit. Then it was “Thomas Time.”

I had anticipated the proceedings going the way they were going, so I wasn’t disappointed; but as I listened to Justice Clarence Thomas question the attorneys for the plaintiffs, I couldn’t help but feel embarrassed for him as he struggled to connect the dots between some very simple concepts. Like an obsessive-compulsive pit bull shaking a rag doll, he kept insisting on connecting the dots of the actual argument we were hearing …to the dots of an imaginary dialog running through his own mind in a closed-locked loop of nutty ideology. As I listened to his inarticulate rambling, I realized that most children have a better grasp of fundamental logic than Clarence Thomas has. I asked myself: Why is this man sitting on our Supreme Court? I suddenly realized that I had just asked myself a trick question.

Clarence Thomas is noted for asking fewer questions, making fewer comments, and expressing fewer opinions than any Justice in the history of the court, so he is something of an enigma. In lock step with the other six right-wing justices, Clarence is an “Originalist,” meaning that he believes that the United States Constitution should be applied using the exact semantic meaning of the words used by the Founding Fathers to “interpret” what the Founding Fathers would probably mean if they had only written the law for our modern issues …but the Founding Fathers were not as smart as we are today. They didn’t have Google, and they didn’t have Clarence Thomas to connect the imaginary dots for them. Too bad for them: Clarence’s version of the Constitution was written by The Heritage Foundation!

In the Heritage Foundation’s version of the 18th century, Clarence would have been a cheerful, happy-go-lucky field hand with a slight tendency toward laziness, but content to to be a beloved member of an extended family of hardworking, noble, kindly plantation owners just struggling to keep the family business afloat. The reality of those times was that according to the original-recipe Articles of Confederation and “new and improved” Constitution Classic, Judge Thomas, a black man, would have been ineligible to vote. In 18th century America, Clarence could be legally held in slavery as a white man’s property for life, including his children, and their children, and their children …in perpetuity. Clarence could have been tied to a whipping post, unable to vote, marry, read, write, own property, or do anything except work …or be killed on a whim. I understand Justices Roberts, Alito, Gorsuch, Barrett, and Kavanaugh — they were born rich, privileged, and white. I get that they shill for the corporate interests of the ruling class …but Clarence Thomas? I have always had trouble making any sense of that. It would only make sense to me if he belonged to a weird cult, like Justice Barrett. Honestly, I just couldn’t see it. I couldn’t see, that is, until Clarence’s wife, Ginni, made the front page news. Holy Shit! Clarence and Ginni really do belong to some weird cult! They’re full-blown Q-Anon conspiracy-theory Donald Trump cultists caught dipping their toes in the wading pool of High Treason! No wonder Clarence never says anything!

So maybe it’s time for Clarence and the other Justices to wake up to the fact that we don’t want to return to an “Originalist” Constitution that allows voter restrictions, Jim Crow segregation, dark money, or a whole host of bad things from our past …things we don’t want to be dragged back down into. Yes, we are a deeply flawed nation, and we come from a checkered past; but Americans have always been willing to buck up and make our nation better, more diverse, more just, and more equal. Our Constitution itself has, by design, allowed us to evolve past the worst of our flaws and move on into something better. We have developed a shared concept of this process, and we call it “The American Dream.” No, Clarence, we don’t want your “Originalist” Constitution. We want the “American Dream” Constitution! Snap out of it, or step down, Clarence! Can’t you hear the angry villagers coming?

Apologia and Erratum

I did not make absolutely clear from the beginning that my tirade against the Supreme Court does not apply to either Justice Sonya Sotomayor, who I regard as a paragon of jurisprudence and a moral presence of heroic proportions; or Justice Kagan, who has never been a party to the shenanigans that have become known as “the Roberts Court.”