Clarence Thomas’ legal vision is becoming a Trump-era reality.

Clarence Thomas’ legal vision is becoming a Trump-era reality..

by Dahlia Lithwick, Mark Joseph Stern · August 2, 2017
Aug. 02, 2017 Cover Story
There’s a reason Clarence Thomas writes so many solo dissents and concurrences. The second-longest-tenured justice on the Supreme Court has spent more than 25 years staking out a right-wing worldview that can generously be described as idiosyncratic. Thomas’ Constitution is one that gives a president at war the powers of a king while depriving Congress of any meaningful ability to regulate the country. His opposition to the very existence of much of the federal regulatory state, too, has never quite found five votes on the court. No other justice, except perhaps Neil Gorsuch if he continues down his current path, would carry his conservative principles to such an extreme position with regard to presidential authority and congressional constraint.

Now a judge who’s spent his career teetering off the right edge of the federal bench finds himself at the center of the table. Thomas was on hand at the inauguration to swear in Vice President Mike Pence, using the same Bible that Ronald Reagan used when he was sworn in for both of his terms as president. But Thomas is more than just the Trump administration’s philosophical hero. His once-fringy ideas are suddenly flourishing—not only on the high court, through his alliance with Gorsuch, but also in the executive branch.

Donald Trump’s crude understanding of the United States government aligns startlingly well with Thomas’ sophisticated political worldview. The president’s belief that the commander in chief can wage war in whatever way he wishes corresponds neatly to Thomas’ theory of the “unitary executive,” and his visceral hostility to the Affordable Care Act dovetails with Thomas’ abhorrence of the federal social safety net. The two men also share an absolutist opposition to gun control, a belief that the government may favor and promote Christianity over other faiths, a deep skepticism of the elite academic establishment, and a nostalgia for the perceived America of yesteryear. Both take a hard-line stance against illegal immigration and show little concern for the rights of individuals accused of terrorism. Thomas is a thinker and Trump is a feeler, but together they have arrived at similar conclusions. They want less government, a more authoritarian executive, more God, fewer racial entitlements, and more guns.

While Trump may share Thomas’ intuitions, he is far too witless to grasp, let alone implement, the justice’s complex theories of law. And save for the occasional ruling in the administration’s favor, there isn’t much Thomas can do directly to guide the course of Trump’s presidency. Nevertheless, the justice’s fingerprints are all over the executive branch. That’s because he’s trained a small army of acolytes to implement his larger project of shrinking the regulatory state and fighting back against the supposed chokehold of political correctness. (It’s exactly this scourge of “political correctness,” both Trump and Thomas would have you believe, that allowed claims of improper sexual conduct to briefly overshadow their professional accomplishments.)

Everywhere you turn in Trumpland, you’ll find a slew of Thomas’ former clerks in high places. They are serving in the White House counsel’s office (Greg Katsas, John Eisenberg, David Morrell); awaiting appointment to the federal judiciary (Allison H. Eid, David Stras); leading the departments of the Treasury (Heath P. Tarbert, Sigal Mandelker) and Transportation (Steven G. Bradbury); defending the travel ban in court (Jeffrey Wall); and heading the White House Office of Information and Regulatory Affairs (Neomi Rao). Thomas clerks are also working with dark money groups to execute Trump’s agenda (Carrie Severino) and boosting him in the far-right media (Laura Ingraham).

Former Thomas clerk Jeffrey Wall is now Trump’s acting solicitor general.
Department of Justice
In an era in which former clerks seem, on balance, to be drifting away from Washington jobs, a whole lot of members of the old Thomas crew are moving back home. It’s near impossible to count every former Supreme Court clerk who is now playing a role in the sprawling executive branch, but it’s easy to see that an enormous number of Thomas protégés are stepping into positions of immense power. Every expert we spoke to, among them the New Yorker’s Jeffrey Toobin, agreed the Trump administration has brought on a striking number of Thomas clerks.

To be sure, a numerous of clerks who trained under Antonin Scalia, Anthony Kennedy, and other conservative justices have taken jobs with the government. But Stephen Vladeck, who teaches law at the University of Texas and serves as a Supreme Court analyst for CNN, says it’s instructive to compare the career paths of clerks who worked for Thomas and those who served under Scalia. The latter, Vladeck says, have gravitated more toward the conservative establishment—institutions like law schools and legal foundations. The Thomas clerks, who have “a bit more of a libertarian or populist streak,” are a more logical fit for the key legal jobs serving the Trump White House. It is the Thomas alums that have risen to prominence in the past six months, and they are working zealously to put their mentor’s ideas into action.

Consider Wall, Trump’s acting solicitor general, who left his law firm, Sullivan & Cromwell, to join the administration. Wall is the attorney who, back in May, so adroitly argued the travel ban case before the lower federal appeals courts and aggressively litigated the case in pleadings this summer at the Supreme Court. It was Wall who insisted on the “presumption of regularity” in the litigation, cautioning the judges to focus on the long tradition of deference to executive authority—especially in the realm of national security—and to ignore Trump’s incendiary tweets and campaign statements.

Wall has said that the judges for whom he has clerked are still his “close friends.” Perhaps most significantly, at an event last year celebrating Thomas’ 25th anniversary on the court, Wall defended the justice’s singular relevance and influence, rejecting any criticism that Thomas hasn’t had a profound impact on the court as “pernicious and wrongheaded.” (He’s quite right about that; liberals consistently underestimate Thomas’ influence.) Describing his former boss as an “intellectual catalyst,” Wall said that Thomas “is content to sow ideas that result later in changes in the law.”

That’s precisely the influence we are now seeing at work across the federal government. In arguing the travel ban cases, Wall insisted that limiting Muslim immigrants’ access to the United States does not amount to unlawful animus, that the president must have near-total authority to control the nation’s borders, and that his decisions must not be second-guessed by the courts. These are classic Thomas principles, and the justice himself embraced them in a partial dissent when the court allowed only part of the ban to take effect.

Thomas’ influence can also be seen in the work of Neomi Rao, whom the Senate recently confirmed to lead the Office of Information and Regulatory Affairs. Until her appointment as Trump’s regulatory czar, Rao served as a professor at George Mason University’s law school—an institution that, at Rao’s urging, was recently renamed in honor of Antonin Scalia. Rao has devoted her academic career to criticizing the administrative state—the web of agencies and committees that promulgate federal regulations. Her attacks on the government sit at the intersection of two quintessential Thomas principles: an aversion to regulations (especially labor and environmental rules) and a hostility toward limits on executive authority.

Former Thomas clerk Neomi Rao is set to lead the White House Office of Information and Regulatory Affairs.
Screenshot via YouTube
Rao believes, for instance, that independent agencies are unconstitutional. These commissions—which include the Securities and Exchange Commission, the Consumer Financial Protection Bureau, the Federal Communications Commission, the Equal Employment Opportunity Commission, and the Federal Reserve—flourish in part because they are removed from political pressures. Rao would like to change that. She believes that since these agencies are part of the executive branch, the president must be empowered to fire and replace their leaders.

Thomas sees his clerks as trainees in a very specific ideological program.
It seems extremely likely that Rao has been placed in her perch at OIRA not only to bust traditional agency regulations but also to bring independent agency rules under her purview. While her office does not currently review rules by independent agencies, she has argued that it should. Thomas has strongly suggested that all agencies within the executive branch, independent or not, must ultimately be accountable to the president. If Rao gives herself veto power over these agencies’ rules, she will bring Thomas’ vision a step closer to the reality. In the process, she could nullify whatever vestiges of liberalism are still lingering from the Obama era. For example, the EEOC recently took the position that federal law protects gay employees, directly contradicting Trump’s Justice Department. If Rao’s view wins out, Trump could fire as many EEOC commissioners as he needs to in order to reverse the agency’s position. Thomas, who takes a dim view of nondiscrimination law and gay rights, would be doubly proud.

The justice must already be delighted at the work of his former clerk Allison Eid, whom Trump has nominated to the 10th U.S. Circuit Court of Appeals. Eid currently serves on the Colorado Supreme Court, where she established her conservative bona fides by dissenting from a ruling that prohibited the state from sending public funds to private religious schools. The court’s decision was compelled by the Colorado Constitution, which bars the government from spending “any public fund or moneys … to help support or sustain any school … controlled by any church or sectarian denomination.” But according to Eid, this constitutional bar on public funding of parochial schools was likely motivated by unconstitutional animus toward religion—even though its plain text indicates nothing more than a desire to observe the separation of church and state.

Eid’s dissent, which she wrote in 2015, maps neatly onto Thomas’ own concurrence in 2017’s Trinity Lutheran v. Comer. In Trinity, the court ruled that Missouri could not deny a grant to a Christian school solely on account of its “religious character.” (A day after the court decided Trinity, it vacated the Colorado Supreme Court’s decision on parochial schools, effectively vindicating Eid’s dissent.) Thomas asserted that the court had not gone far enough in Trinity: He wrote that the government may never “discriminate against religion” by refusing to subsidize houses of worship and sectarian programs. Thomas, like Eid, appears to believe that when a state declines to fund religious activity—even out of respect for the Establishment Clause—it engages in unconstitutional discrimination. When Eid is confirmed, he will gain a critical ally in his fight for ever-more entanglement between church and state. And she will be the first of many Trump picks who are as immutable in their views as their former bosses. This is a movement and a cause, not just constitutional theory.

Trump has nominated former Thomas clerk Allison H. Eid to the 10th Circuit.
Joe Amon/The Denver Post via Getty Images
Thomas, who has described his clerks as his “little family,” sees them as trainees in a very specific ideological program. He famously invites them to watch The Fountainhead at his home each year and has taken them on annual trips to Gettysburg to reflect on what he views as the conservative lessons of the Civil War. He also tutors his clerks on his judicial philosophy, instilling in them a profound reverence for his own vision of the rule of law.

It’s no surprise that so many of Thomas’ clerks share a belief system with their former boss, and with each other. Thomas is known to be ideologically rigid when it comes to hiring (and in everything else). He is the only sitting justice never to have brought on a clerk who previously served under a judge appointed by a president from the opposite party. Even Scalia occasionally hired “counter-clerks,” liberal-leaning men and women who had clerked for Democratic appointees on lower courts. Thomas has expressed no interest in this kind of ideological diversity. (To his credit, he does value educational diversity, intentionally hiring clerks from lower-ranked schools. Compare that with Scalia, who was openly biased against schools outside the T14.)

Trump’s reactionary view of conservatism is causing a schism at the Supreme Court.
Like all justices, Thomas tends to get his clerks from a handful of feeder judges. Thomas’ chief feeders are J. Michael Luttig and J. Harvie Wilkinson of the U.S. Court of Appeals for the 4th Circuit, Laurence Silberman and David Sentelle of the D.C. Circuit, Edith Jones of the 5th Circuit, and William Pryor of the 11th Circuit—all rock-ribbed conservatives except for Wilkinson, who has recently drifted to the center. By drawing from this pool, Thomas ensures he won’t hear many progressive counterpoints to his conservative instincts. And that’s OK with him. Thomas has said that picking clerks is like “selecting mates in a foxhole,” explaining: “I won’t hire clerks who have profound disagreements with me. It’s like trying to train a pig. It wastes your time, and it aggravates the pig.”

While Thomas is famously one of the most personable justices on the high court—the stories of his generosity to former clerks and court staff are myriad—he has also cultivated a with-us-or-against-us mindset that owes more to AM radio than George Will, and that maps perfectly onto Trump’s Fox News–inflected worldview. Thomas is close buddies with Rush Limbaugh (he officiated at Limbaugh’s third wedding) as well as fringe radio dogmatist Mark Levin. Georgetown law professor Peter Edelman has described him as “the Tea Party of the Supreme Court.”

President Trump shakes hands with Justice Clarence Thomas at the U.S. Capitol at the inauguration on Jan. 20.
Alex Wong/Getty Images
Thomas does not travel in the same conservative legal circles as John Roberts. Throughout his campaign, Trump derided the chief justice as an open traitor to the conservative project, explaining that “what he did with Obamacare was disgraceful.” Trump called Roberts a “nightmare for conservatives” in January 2016 and claimed that he writes like a “dummy.” He has described Thomas, meanwhile, as his favorite justice, calling him “very strong and consistent.” We also know from a leaked email sent to the Daily Beast in February that Thomas’ wife, Ginni Thomas, tried to organize conservative activists to defend Trump’s initial travel ban. This political activism did not preclude Thomas from participating in the court’s travel ban decisions, in which he has twice supported the president. There is a long-standing debate about whether Ginni Thomas’ political activities might affect her husband’s votes.
At the very least, the fact that she openly aligns herself with Trump—even as the rest of the justices try to ignore the unseemliness of it all—reflects his comfort with the Trumpian worldview.

It feels increasingly evident that Trump’s reactionary view of conservatism is causing a schism at the Supreme Court. Over the past two terms, a split has opened up between the two center-right justices, Roberts and Kennedy, and the three far-right justices, Samuel Alito, Gorsuch, and Thomas. One explanation for the trend is that the center of the court is distancing itself from the hard-right crusaders, whom Democratic Sen. Mazie Hirono recently dubbed “the three horsemen of the apocalypse.” This rift, if it continues, presages a possible split between the kinds of judges and justices Trump prefers—polemicists and bomb throwers—and the more traditional movement conservatives who have historically populated the federal bench. If Trump seeds the lower courts with judges like Allison Eid who share Thomas’ views, he stands to reshape the country for decades. That means that long after the Cabinet appointees and White House lawyers leave the scene, constitutional law will bear the thumbprints of Thomas and his clerks. Thanks to Trump, Thomas’ ideas—about the unitary executive, the wall between church and state, and so much more—will now surely outlive both men.

Both Trump and Thomas have spent decades as the brunt of liberal jokes and slights. Both see themselves as innocent victims of women and interest groups that have fabricated claims against them. Both have seen their ideas slip from the very fringes of political discourse into the ascendancy.

Now, Thomas stands as a symbol of what a faltering, lawless Trump may yet accomplish—if his supporters can turn a blind eye on the faltering lawlessness. At the precise moment in which the more than 120 vacancies on the federal courts may be the only reason for conservatives to hold their noses and stand by Trump, it’s Clarence Thomas who stands as a living embodiment of wars already won and triumphs yet to come.

Top image: Photo illustration by Slate. Photos by Steve Petteway, Collection of the Supreme Court of the United States and iStock.

Published Aug. 02, 2017, 5:01 PM ET
Share

Dahlia Lithwick writes about the courts and the law for Slate, and hosts the podcast Amicus.

Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ issues.

Categories: left

Tagged in: