Today's postcard, Clarence Thomas, and The Third Cigar

Raindrops on lupine leaves

Justice Thomas and The Third Cigar

At the risk of sounding like an eternal optimist I think there’s a good chance the chaos of 2023 will mark the opening of a new period in our history. Let’s call it: The unraveling dark side of the American soul. And hope that it is.

I’m not precisely sure what the tipping point is, or will be. But the load for the imbalance bringing us to the verge gathered much of its weight after 1968. It turns out it wasn’t the social revolution of the anti-war and the civil rights movements. It was the long and concerted backlash to it—the counter-movement of right-wing populism that opened opportunities for Richard Nixon, Newt Gingrich, and ultimately Donald Trump. It brought us Phyllis Schlafly, Rush Limbaugh, a litany of other flame-mouthing, right wing radio jocks and, of course, Roger Ailes and Fox News.

It also brought us Justice Clarence Thomas. Talk about owning the libs.

Thomas, of course, was George H.W. Bush’s choice to succeed the eminent Justice Thurgood Marshall who—prior to becoming the first African-American on the Supreme Court—had successfully argued Brown v. Board of Education, the 1954 case that put an end to state-sanctioned segregation in our schools. There’s no rule that there has to be a person of color on the Supreme Court. But that was certainly the expectation after Marshall passed in early 1993. Thomas clearly benefited from that. But it was a cynical choice—in that Thomas’s jurisprudence is profoundly at odds with Justice Marshall’s.

That difference between Marshall and Thomas on the law was not the focus of Thomas’s nomination hearings. Instead it was the allegations of sexual harassment brought forward by Anita Hill, who had been a legal assistant to Thomas in the early 1980s. I well-remember watching those hearings, chaired by then-Sen. Joe Biden, as the proceedings turned into a brutal attack on Hill, culminating with a sullen and emotional accusation by Thomas that Hill was an instrument in a “high-tech lynching.” It was ugly and disheartening—the Senate intimidated by a person who, time has more clearly shown, is profoundly unfit to judge anybody. Thomas was confirmed 52-48 in a Senate in which Democrats held a 12-seat majority.

The larger tableau of American politics, at the time, was being gathered by a writer, Thomas Frank, who ultimately published it, in 2004, under the title What’s the Matter with Kansas? How Conservatives Won the Heart of America. In short, the Republican Party’s free-enterprise, billionaire class had won over the agrarian, fundamentalist heartland by promising to stack the courts with judges who could be counted on to repeal Roe v. Wade, the 1973 Supreme Court decision that legalized abortion. Clarence Thomas was one of those judges.

Mid-America wanted a culture war, billionaires wanted tax cuts and de-regulation. In a nutshell, this is the purposeful handshake that brought us the Tea Party Movement, and the MAGA movement, the rise of white supremacy, the staggering Bush and Trump tax cuts for the wealthy, the repeal of Roe v. Wade, and a dark fealty to the gun lobby even as school children are being mowed down, on a seemingly weekly basis, with easily purchased assault rifles.

It almost fits all in one picture. It is the picture that emerged a week ago in a remarkable Pro-Publica exposé on Clarence Thomas. The literal picture is actually a painting with photographic qualities, created by Sharif Tarabay, an artist commissioned by billionaire Harlan Crow. It depicts Crow and Thomas lounging outdoors at Crow’s lavish retreat, Camp Topridge, in upstate New York. Camp Topridge is just one of Crow’s properties that Thomas regularly visits as a guest of the billionaire. Indeed, as a non-paying guest, Thomas and his wife, Ginni, have received millions of dollars worth of travel, lodging, and other hospitality from Harlan Crow, with virtually none it it disclosed, as it should have been, to the public. The ProPublica investigation is rife with details, including Crow’s underwriting of Gini Thomas’s ultra-right-wing political work, and Crow’s efforts to promote Thomas as someone who prefers camping in an RV at Walmart parking lots, as opposed to private jet and yacht-time with Crow.

The Tarabay picture requires a bit of subtext and context. In addition to Thomas and Crow (on the right side of the picture, with cigars in their hands) the others in the frame, left to middle, are three lawyers, Peter Rutledge, Leonard Leo and Mark Paoletta.

It’s Leonard Leo’s presence that is most shocking, yet somehow no surprise. As a long-time principal (and legendary fundraiser) at the ultra-conservative Federalist Society, Leo is the lead architect for the decades-long conservative make-over of the U.S. judiciary. As The Guardian noted in a profile of Leo last September, even Thomas has openly joked about Leo being “the third-most powerful man in the world.”

The foremost point is the power per se. Including Thomas, six of the Supreme Courts nine justices (Thomas, Chief Justice Roberts, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett) have ties to the Federalist Society.

The society’s influence also extends to lower court appointments. It will not surprise you that Federal District Court Judge Matthew J. Kacsmaryk has been a member of the Federalist Society for at least a decade. From his courtroom in Amarillo, Texas, Kacsmaryk is now famous for his controversial ruling, last Friday, suspending the Food & Drug Administration’s approval of mifepristone, a pill that has long been considered a safe way to induce an abortion.

There is also an outrage gap that is a feature both of populist anger and right-wing media. All this yammering about a liberal “deep state.” One can only imagine the bonfires in the streets were it revealed that Justice Elena Kagan failed to disclose she’s been jet-setting and yachting for years with George Soros.

We shouldn’t forget the relentless criticism from conservatives about “activist judges” abusing their power from the bench. This, even though several of the most consequential decisions in recent years—construing money as free political speech, severely weakening the Justice Department’s power to enforce voting rights, and weakening governments’ ability to regulate firearms—have been won by conservatives. Not hearing a peep about “judicial activism” from conservatives now, are we?

To be sure there is a story here about the discipline and perseverance of those on the right to work methodically, over decades, to repeal Roe v. Wade, pour corporate money into political campaigns, and enable gerrymandering that purposefully disenfranchises millions of Americans, most notably people of color. But we shouldn’t be celebrating or admiring the commitment to goals that purposefully diminish the rights of others, and make it more difficult to have their voices heard, their liberties and health protected, and their votes counted.

Yet, that has been the trend. The Tarabay image from Camp Topridge is so obviously a celebration of that raw power—the power to direct more wealth to the wealthy, and the power to disenfranchise those who work for fairness, human rights and actual democracy.

When I look at the picture I see a parody of The Last Supper.

Let’s call it The Third Cigar.

—tjc