Don’t worry about Clarence Thomas — worry about the liberal justices who back him up

What Thomas said this week about the Texas abortion ban was typical. But it’s the other, silent members of the Supreme Court who point to an even bigger problem

Seated from left: Associate Justice Samuel Alito, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Stephen Breyer and Associate Justice Sonia Sotomayor, standing from left: Associate Justice Brett Kavanaugh, Associate Justice Elena Kagan, Associate Justice Neil Gorsuch and Associate Justice Amy Coney Barrett pose during a group photo of the Justices at the Supreme Court in Washington, DC on 23 April 2021 (ERIN SCHAFF/POOL/AFP via Getty Images)

Supreme Court Justice Clarence Thomas yesterday insisted that the court’s decision to allow a restrictive Texas abortion law to stand was nonpartisan. “I think the media makes it sound as though you are just always going right to your personal preference,” he declared. “So if they think you are anti-abortion or something personally, they think that’s the way you always will come out.” His words echoed those of Justice Amy Coney Barrett, who said last week that Supreme Court justices are not just “partisan hacks.”

It’s not a surprise that Barrett and Thomas are in accord. They’re both extreme conservative judges, who seemingly have a hackish partisan interest in legitimizing and normalizing their reactionary partisan hackery.

Liberal judges’ insistence on the fiction of an apolitical Supreme Court is, at this juncture, more complicated. You could argue it is because they are naïve, or because they are less hackish than their conservative peers. But the real reason is probably that in a system that gives reactionaries great power, everyone has a massive incentive to support reactionaries. Liberals are coopted by a system that equates non-partisanship with conservative power.

Supreme Court justices of every persuasion have long cultivated a bipartisan brand. Liberal Justice Ruth Bader Ginsburg and conservative Justice Anton Scalia were far apart in their legal philosophy but they made much of their friendship off the bench, which was even celebrated in an opera. Ginsburg, on opening night, said the performance — and the friendship — showed “we’re not like Congress at the moment, so divided there’s no conversation possible.”

Ginsburg died in 2020, allowing President Trump to appoint a conservative to the seat and effectively claim the court for the far-right for a generation at least. But liberal Justice Stephen Breyer continues to carry the torch of bipartisan rhetoric. Democratic activists and commenters have argued that if Democrats can gain a Senate majority, they should expand the seats on the court so right-wing partisan hack judges do not block Democratic legislation. But Breyer insisted that the court is not “another political institution” and that Democratic tampering with its make-up would erode public trust.

Breyer’s comments came after years of Republican tampering with the bench. In 2016, Mitch McConnell refused to allow even a hearing on Barack Obama’s appointment of Merrick Garland for almost a year. Then, after Ginsburg died in 2020, McConnell rushed through a conservative appointee. In between those two power grabs, the GOP rallied around then-nominee, now-Justice Brett Kavanaugh despite accusations that he had sexually harassed or assaulted multiple women (which he denies). It’s thanks to this shamelessly partisan GOP maneuvering that there is a 6-3 conservative majority on the court.

Republican judicial power isn’t just the result of maneuvering, though. It’s structural. Because of the disproportionate influence of white rural voters, the GOP has a huge advantage in presidential elections. For the same reason, it has an even bigger advantage in the Senate. That’s why Republicans could lose the popular vote in 2016 and still elect a conservative president — who appoints justices. It’s why, despite national unpopularity, they also keep winning a conservative Senate — which confirms justices.

The system is rigged against Democrats. Republicans nakedly exploit that advantage in order to appoint justices who will, for example, uphold radical forced birth rulings in Texas. It’s in the interest of Republicans for this to happen, and for conservative judges in turn to say that they are just neutrally applying the law. By doing so, they defuse criticism and undermine Democratic efforts to restrain extremist, undemocratic, and unpopular judicial seizures of power.

The rhetoric of nonpartisanship also makes the institution of the Supreme Court seem more prestigious. Everyone likes to feel prestigious — including liberal justices. Politicians are unpopular and seen as…well, hackish. Breyer and Thomas alike would like to be thought of as wise and balanced. You don’t get to be a Supreme Court justice without being a bit (or more than a bit) of an egotist.

There are also pragmatic incentives for liberals to tout bipartisanship, though. Supreme Court judges have to work together and get each other to sign onto one another’s opinions. When you’re in an extremely institutional institution like the Supreme Court, you have to be an institutionalist to do your job.

Unfortunately, that institution is by its nature reactionary. That’s the case long-term, since the conservative bias of the electoral college and Senate means that Republicans have a stranglehold on the court. And it’s the case right now, with a 6-3 conservative majority. That’s only likely to get more lopsided as Breyer seems determined not to retire now — and Biden may lose his Senate majority after the midterm elections.

When Thomas says the Supreme Court is nonpartisan, he’s defusing liberal criticism from outside. But he’s also — successfully — coopting liberal opponents on the bench. Change is hard because once an institution becomes reactionary, everyone in the institution has an incentive to be more reactionary as well.