Yet for all the many, many warning signs that nominee Thomas did not belong on the bench, Justice Thomas has turned out to be far more ideological, far more loyal to discredited constitutional theories, and far more willing to discredit the Supreme Court as an institution than anyone could have anticipated. Thomas accepted lavish gifts from wealthy benefactors and corporate-aligned interest groups. He refused to recuse himself from cases that one of his benefactors participated in. He unethically attended a political fundraiser hosted by right-wing billionaire Charles Koch, and he illegally omitted hundreds of thousands of dollars of his wife’s income from his financial disclosure forms.
But Thomas’ many, many ethical scandals are the least of Thomas’ problems. Eighty years ago, the Supreme Court was gripped by a libertarian madness which taught that the most basic labor and consumer protections somehow violate the Constitution. At the vanguard of this movement were the “Four Horsemen,” four right-wing justices who consistently and repeatedly opposed President Franklin Roosevelt’s effort to build the foundation of American’s modern regulatory system and social safety net.
By Roosevelt’s second term, however, the Four Horsemen’s stranglehold on the Constitution ended, and was quickly replaced with the modern understanding that national leaders can decide how to regulate matters that “substantially affect interstate commerce.” In three separate cases, United States v. Lopez, United States v. Morrison, and Gonzales v. Raich, Thomas rejected this return to the democratic form of government our Constitution created — and effectively demanded that most of the Twentieth Century be struck down. Although it is tough to count how many essential laws would simply cease to exist under Thomas’ Bizarro Constitution, a short list includes the federal bans on race, gender, age and religious discrimination in the workplace, the Americans with Disabilities Act, national minimum wage overtime laws, and the federal ban on whites-only lunch counters.
Eighty years ago, the modern economy was still young, the world was still unsure how to govern an industrialized nation, and the consequences of Roosevelt’s New Deal were still unknown. For this reason, the Four Horsemen might be forgiven their tragic decision to stand athwart progress demanding that it stop. Clarence Thomas does not have this excuse. He sits on the other side of history with full knowledge that America prospered and grew into to wealthiest, most powerful nation that has ever existed in the decades that followed the Four Horsemen’s defeat. It’s an absolute mystery why he would trade a Constitution that has served us so well for the distorted constitution that served our great-grandparents so poorly.