Clarence Thomas became an associate justice of the Supreme Court in October 1991.  Former President George H.W. Bush appointed him to the Court to replace retiring Justice Thurgood Marshall, one of the most revered justices to ever sit on the Court. Thomas knew (or should have known) that he would never achieve the legal stature of Justice Marshall. He also knew that Bush had appointed him in “a bold political move calculated to make it more difficult for many of the same civil rights organizations and southern blacks, who opposed Judge Robert Bork’s Supreme Court nomination, to oppose Justice Thomas.” Thomas knew that Bush expected him to be a loyal soldier in the conservative political establishment whose court decisions would support a budding right-wing political agenda Ronald Reagan had infused into the nation’s body politic.

 

The problem was that virtually everyone involved in Thomas’ appointment and confirmation process knew he was not qualified to be a justice on the High Court. He had been a District of Columbia Court of Appeals judge (an appointment also given to him by Bush) for a little more than a year before his Supreme Court appointment. Before that, he served two terms as chairman of the Equal Employment Opportunity Commission under President Reagan, during which time he began to parrot Reagan’s anti-welfare and anti-affirmative action points of view.

 

Despite receiving pressure from President Bush’s inner circle to give Thomas a mid-level “qualified” rating for a Supreme Court nominee, the American Bar Association’s Standing Committee on the Federal Judiciary gave him one of the lowest ratings it had ever given to a Supreme Court nominee.

 

The low rating has proven itself justified.

 

Thomas has distinguished himself not as an imminent constitutional scholar, as Justice Marshall did, but as a right-wing political ideologue willing to sell his vote to the highest benefactor.

 

Justice Thomas’ ethical lapses are a scalding and controversial topic that we (and so many others) have blogged about in recent months—the hundreds of thousands of dollars (and probably so much more) in gifts, favors, privileges, and benefits that a network of exceedingly wealthy billionaire benefactors have bestowed upon Thomas to keep him a happy camper in the right-wing Federalist Society agenda, so much so that a “vote for sale” sign should now hang on his chambers door.

 

But it is Thomas’ repeatedly stated desire to overturn decades of Supreme Court precedents that would effectively transform America into a white evangelical nationalist country that causes so much alarm in the legal community.

 

For example, Thomas has said that the 2015 Supreme Court decision in Obergefell v. Hodges, which legalized “same-sex marriages” in all 50 states, has had “ruinous consequences for religious liberty” and should be overturned. The religious liberty he refers to is his view of Christianity—not all religious freedoms.

 

Two years ago, Thomas, along with his right-wing ideologue cohort Justice Samuel Alito, led the effort to have Roe v. Wade—a 1973 Supreme Court precedent that legalized abortion—overturned in Dobbs v. Jackson.

 

In a concurring opinion in the Dobbs decision, Thomas urged the Court to “reconsider” Obergefell, Griswold v. Connecticut (state ban on contraceptives for married couples declared unconstitutional), and Lawrence v. Texas (legalizing same-sex activity).

 

U.S. evangelical nationalists oppose the sex/privacy rights advanced in these decisions. Thomas’ wife, Ginni (a right-wing political ideologue herself), has many contacts with people and groups that support the white nationalist movement, who to this day deny the 2020 election and the transfer of power to President Biden.

 

Beyond these “cultural war” issues promoted by right-wing nationalists of which Thomas has become the champion, the Justice has also set his sights on doing away with other clearly established “constitutional rights” established by Supreme Court precedent.

 

For example, Thomas has indicated a serious willingness to overturn Gideon v. Wainwright, the landmark right-to-counsel decision.

 

More recently, he used an entire concurring opinion in Trump v. United States (the presidential absolute immunity case) to challenge the legal authority of the Attorney General to appoint a “special prosecutor” to investigate the President of the United States or anyone else.

 

Of course, Thomas’ effort to undermine the legitimacy of the “special prosecutors” law may be self-serving. Two U.S. Senators—Ron Wyden (D-Ore.) and Sheldon Whitehouse, (D-R.I.)—recently sent a letter to the Justice demanding an explanation about his possible tax law violations for failing to report “hundreds of thousands of dollars in forgiven debt” and failing to pay income taxes on that money.

 

A justice of the U.S. Supreme Court failing to pay his income taxes is grounds for a “special prosecutor” investigation. And that is precisely what we suggest: a special prosecutor be appointed to investigate whether Thomas’ failure to report gift income constitutes a criminal tax law violation.

 

Fortunately, the Justice does not enjoy the same absolute immunity he just extended to his wife’s fellow insurrectionist, Donald J. Trump.

 

And now the Justice questions the validity of the appointment of special counsels.  The reason is apparent: he may face a special prosecutor soon himself.