For conservatives who are feeling crazed at the thought of Atonin Scalia being replaced by a liberal justice, or even a moderate justice, or anything other than a rock-ribbed conservative justice, I bring you the story of Thurgood Marshall being replaced by Clarence Thomas. If it can happen to one side, it can happen to the other side.

About Thurgood Marshall

For those who don’t remember, Thurgood Marshall was the first African-American justice on the Supreme Court. Before that, he was a lion of the civil rights movement. Early in his career he became the Chief Counsel for the NAACP Legal Defense and Educational Fund. It was Thurgood Marshall who was the lead attorney in the famous case of Brown v. Board of Education, the case that declared state laws establishing separate public schools for black and white students to be unconstitutional.

Marshall served on the Court for 24 years. His most frequent ally on the Court was Justice William Brennan, who consistently joined him in supporting civil rights, abortion rights and opposing the death penalty. Although best remembered for jurisprudence in the fields of civil rights and criminal procedure, Marshall made significant contributions to other areas of the law as well, including such cases as Teamsters v. Terry, holding that the Seventh Amendment entitled the plaintiff to a jury trial in a suit against a labor union for breach of duty of fair representation. In Personnel Administrator MA v. Feeney, Marshall wrote a dissent saying that a law that gave hiring preference to veterans over non-veterans was unconstitutional because of its inequitable impact on women.

And in a scenario that made liberals everywhere roll over in their graves, Marhsall was replaced by Clarence Thomas.

About Clarence Thomas

Clarence Thomas is not a good man. And I’ll still be saying that about him, even after he’s dead. Thomas, who worked for some time as an attorney for the Monsanto Chemical Company, was famously the Chairman of the United States Equal Employment Opportunity Commission, the federal agency that that administers and enforces civil rights laws against workplace discrimination. It was while he was the Chairman of the EEOC that he sexually harassed Anita Hill, who was then an attorney under Thomas’ direct supervision.

I remember watching these hearings and I remember the moment when I concluded that Anita Hill was telling the truth. It was when, after Thomas had graphically described his own sexual prowess and the details of his anatomy, Thomas examined a can of Coke on his desk and asked, “Who has put pubic hair on my Coke?”

Why did that make me believe her? Because it’s so weird, it’s not the kind of thing that someone would make up. I’ve done employment investigations in my own career, and when someone makes something up, they try to make something up that’s believable. They don’t try to make up things that are just head-scratching and weird.

Thomas, of course, denied the allegations, and then played the race card in a completely naked way. He claimed that the hearings were “a high-tech lynching for uppity blacks who in any way deign to think for themselves,” and that the message of the hearings was that “unless you kowtow to an old order, this is what will happen to you. You will be lynched, destroyed, caricatured by a committee of the U.S. Senate rather than hung from a tree.”

This from the guy who had been hostile to affirmative action his entire career, notwithstanding his Chairmanship of the EEOC.

By now, most reasonable people recognize – just as OJ was guilty of killing his wife Nicole and her friend Ron Goldman – that Thomas was guilty of what Anita Hill accused him of. No one has ever been able to poke a hole in her story, and it turns out that she had a number of corroborating witnesses who never got the chance to testify because the Judiciary Committee did not call them.

Regardless, his playing of the race card proved to be enormously effective for Thomas. After extensive debate, the Judiciary Committee split 7–7 on sending his nomination to the full Senate. Thomas was subsequently confirmed by a 52–48 vote, the narrowest margin for approval in more than a century. Having been intimidated by the allegation they were racist, 11 Democrats voted to confirm, while 46 Democrats and two Republicans voted to reject the nomination.

As a justice, Thomas has been the most conservative justice on the Court for the past 24 years. More conservative, even than Antonin Scalia. A pure textualist, Thomas is known for never saying anything during oral argument.[1] He has plenty to say in his numerous dissents, however, which read like Antonin Scalia without the wit. He’s a “state’s rights” guy, although he has supported broad federal authority, especially when exercised by Republican Presidents. Thomas has made public his belief that all limits on federal campaign contributions are unconstitutional, and should be struck down. In cases regarding the Fourth Amendment, which prohibits unreasonable searches and seizures, Thomas often favors police over defendants. He is also consistently pro death-penalty. Thomas believes that the Equal Protection Clause of the Fourteenth Amendment forbids consideration of race, such as race-based affirmative action or preferential treatment. He has consistently been hostile to gay rights and to pro choice positions.

Thomas’ many prolific dissents often put him at odds with other Justices. As Garrett Epps wrote in a 2015 piece in the Atlantic, “the other eight justices often debate the meaning of the Court’s precedents. Thomas seems to find little profit in that; instead, he often suggests that the question will be easy if the Court simply overturns a century or so of precedent.”[2]

There have also been many ethical issues that have surfaced in Thomas’ career. For example, in January of 2010 Virginia Thomas – the wife of Clarence Thomas[3] – founded a Tea Party-affiliated group called Liberty Central, which opposed various progressive causes, including the Affordable Care Act. The constitutionality of the Affordable Care Act has, of course, come before the court several times in the last few years, and Thomas has ruled against it in each case. Liberty Central, as a non-profit, can also take exactly the kind of corporate political donations that Citizen’s United made possible.

Other ethical lapses that have involved Clarence Thomas include the following:

• In 2008 Thomas and Scalia attended a political retreat run by the Koch brothers;
• Thomas forgot to include $680,000 earned by his wife on his financial disclosure reports;
• Thomas had to amend 13 years of financial disclosure reports after his wife’s earnings were revealed;
• Harlan Crowe, who helped fund the Liberty Central group, recently financed a multimillion-dollar restoration of an old Georgia cannery where Thomas’ mother once worked, at the request of Thomas and his wife.

For conservatives who long to see Antonin Scalia replaced by another rock-ribbed conservative, I feel your pain. Like you, I assumed that if anyone was going to kick off suddenly, it would be Scalia’s unlikely buddy, Ruth Bader Ginsburg. But that’s not what happened. It was Scalia who keeled over, and now there are consequences to be had.

[1] He hasn’t spoken since 2006, except for one exclamation made in 2013, when joked that a law degree from Harvard may be proof of incompetence.

[2] His dissent in Obergefell, the same-sex marriage case, was an extreme example of his disregard of precedent. Thomas did not even mention the key gay-rights precedents; instead, he mashed up John Locke, Magna Carta, 18th-century British legal philosophy, natural law, and the Declaration of Independence. Unfortunately, the Declaration of Independence is not actually a source of law, any more than is Locke’s Second Treatise of Government or a “1756 editorial in the Boston Gazette.” Thomas, consulting these “sources,” concluded that “liberty” means one thing only—“freedom from physical restraint.” Under the new Thomas rule, the same-sex couples in Obergefell had not been injured, because they had not been “imprisoned or physically restrained by the States for participating in same-sex relationships.”

[3] Who, naturally enough, is a white woman.