Tuesday, September 18, 2018

Perspective: Watch Clarence Thomas take over the Supreme Court on behalf of Trumps

There's a reason Clarence Thomas writes so many solo dissents and concurrences. The second-longest-tenured justice on the Supreme Court has spent more than 25 years staking out a right-wing world view that can generously be described as idiosyncratic.

Thomas' Constitution is one that gives a president at war the powers of a king while depriving Congress of any meaningful ability to regulate the country. His opposition to the very existence of much of the federal regulatory state, too, has never quite found five votes on the court. No other justice, except perhaps Neil Gorsuch if he continues down his current path, would carry his conservative principles to such an extreme position with regard to presidential authority and congressional constraint.

Now a judge who's spent his career teetering off the right edge of the federal bench finds himself at the center of the table. Thomas was on hand at the inauguration to swear in Vice President Mike Pence, using the same Bible that Ronald Reagan used when he was sworn in for both of his terms as president. But Thomas is more than just the Trump administration's philosophical hero. His once-fringy ideas are suddenly flourishing not only on the high court, through his alliance with Gorsuch, but also in the executive branch.

Donald Trump's crude understanding of the United States government aligns startlingly well with Thomas' sophisticated political world view. The president's belief that the commander in chief can wage war in whatever way he wishes corresponds neatly to Thomas' theory of the "unitary executive," and his visceral hostility to the Affordable Care Act dovetails with Thomas' abhorrence of the federal social safety net.

The two men also share an absolutist opposition to gun control, a belief that the government may favor and promote Christianity over other faiths, a deep skepticism of the elite academic establishment, and a nostalgia for the perceived America of yesteryear. Both take a hard-line stance against illegal immigration and show little concern for the rights of individuals accused of terrorism. Thomas is a thinker and Trump is a feeler, but together they have arrived at similar conclusions. They want less government, a more authoritarian executive, more God, fewer racial entitlements and more guns.

While Trump may share Thomas' intuitions, he is far too witless to grasp, let alone implement, the justice's complex theories of law. And save for the occasional ruling in the administration's favor, there isn't much Thomas can do directly to guide the course of Trump's presidency.

Nevertheless, the justice's fingerprints are all over the executive branch. That's because he's trained a small army of acolytes to implement his larger project of shrinking the regulatory state and fighting back against the supposed choke hold of political correctness.

Everywhere you turn in Trumpland, you'll find a slew of Thomas' former clerks in high places. They are serving in the White House counsel's office (Greg Katsas, John Eisenberg, David Morrell); awaiting appointment to the federal judiciary (Allison H. Eid, David Stras); leading the departments of the Treasury (Heath P. Tarbert, Sigal Mandelker) and Transportation (Steven G. Bradbury); defending the travel ban in court (Jeffrey Wall); and heading the White House Office of Information and Regulatory Affairs (Neomi Rao).

Thomas in Trumpland

In an era in which former clerks seem, on balance, to be drifting away from Washington jobs, a whole lot of members of the old Thomas crew are moving back home. An enormous number of Thomas protégés are stepping into positions of immense power.

Consider Wall, Trump's acting solicitor general, who left his law firm, Sullivan & Cromwell, to join the administration. Wall is the attorney who, back in May, so adroitly argued the travel ban case before the lower federal appeals courts and aggressively litigated the case in pleadings this summer at the Supreme Court. It was Wall who insisted on the "presumption of regularity" in the litigation, cautioning the judges to focus on the long tradition of deference to executive authority — especially in the realm of national security — and to ignore Trump's incendiary tweets and campaign statements.

Thomas' influence can also be seen in the work of Neomi Rao, whom the Senate recently confirmed to lead the Office of Information and Regulatory Affairs (OIRA). Until her appointment as Trump's regulatory czar, Rao served as a professor at George Mason University's law school — an institution that, at Rao's urging, was recently renamed in honor of Antonin Scalia. Rao has devoted her academic career to criticizing the administrative state — the web of agencies and committees that promulgate federal regulations. Her attacks on the government sit at the intersection of two quintessential Thomas principles: an aversion to regulations (especially labor and environmental rules) and a hostility toward limits on executive authority.

Rao believes, for instance, that independent agencies are unconstitutional. These commissions — which include the Securities and Exchange Commission, the Consumer Financial Protection Bureau, the Federal Communications Commission, the Equal Employment Opportunity Commission, and the Federal Reserve — flourish in part because they are removed from political pressures. Rao would like to change that. She believes that since these agencies are part of the executive branch, the president must be empowered to fire and replace their leaders.

A movement and a cause

It seems extremely likely that Rao has been placed in her perch at OIRA not only to bust traditional agency regulations but also to bring independent agency rules under her purview. While her office does not currently review rules by independent agencies, she has argued that it should. Thomas has strongly suggested that all agencies within the executive branch, independent or not, must ultimately be accountable to the president.

If Rao gives herself veto power over these agencies' rules, she will bring Thomas' vision a step closer to the reality. In the process, she could nullify whatever vestiges of liberalism are still lingering from the Obama era. For example, the EEOC recently took the position that federal law protects gay employees, directly contradicting Trump's Justice Department. If Rao's view wins out, Trump could fire as many EEOC commissioners as he needs to in order to reverse the agency's position. Thomas, who takes a dim view of nondiscrimination law and gay rights, would be doubly proud.

The justice must already be delighted at the work of his former clerk Allison Eid, whom Trump has nominated to the 10th U.S. Circuit Court of Appeals. Eid currently serves on the Colorado Supreme Court, where she established her conservative bona fides by dissenting from a ruling that prohibited the state from sending public funds to private religious schools.

Eid's dissent, which she wrote in 2015, maps neatly onto Thomas' own concurrence in 2017's Trinity Lutheran vs. Comer. In Trinity, the court ruled that Missouri could not deny a grant to a Christian school solely on account of its "religious character." (A day after the court decided Trinity, it vacated the Colorado Supreme Court's decision on parochial schools, effectively vindicating Eid's dissent.) Thomas asserted that the government may never "discriminate against religion" by refusing to subsidize houses of worship and sectarian programs. Thomas, like Eid, appears to believe that when a state declines to fund religious activity — even out of respect for the Establishment Clause — it engages in unconstitutional discrimination. When Eid is confirmed, he will gain a critical ally in his fight for ever-more entanglement between church and state. And she will be the first of many Trump picks who are as immutable in their views as their former bosses. This is a movement and a cause, not just constitutional theory.

Thomas, who has described his clerks as his "little family," sees them as trainees in a very specific ideological program. He famously invites them to watch The Fountainhead at his home each year and has taken them on annual trips to Gettysburg to reflect on what he views as the conservative lessons of the Civil War. He also tutors his clerks on his judicial philosophy, instilling in them a profound reverence for his own vision of the rule of law.

One belief system

It's no surprise that so many of Thomas' clerks share a belief system with their former boss, and with each other. Thomas is known to be ideologically rigid when it comes to hiring (and in everything else). He is the only sitting justice never to have brought on a clerk who previously served under a judge appointed by a president from the opposite party.

Even Scalia occasionally hired "counter-clerks," liberal-leaning men and women who had clerked for Democratic appointees on lower courts. Thomas has expressed no interest in this kind of ideological diversity. (To his credit, he does value educational diversity, intentionally hiring clerks from lower-ranked schools. Compare that with Scalia, who was openly biased against schools outside the T14.)

Like all justices, Thomas tends to get his clerks from a handful of feeder judges. Thomas' chief feeders are J. Michael Luttig and J. Harvie Wilkinson of the U.S. Court of Appeals for the 4th Circuit, Laurence Silberman and David Sentelle of the D.C. Circuit, Edith Jones of the 5th Circuit, and William Pryor of the 11th Circuit — all rock-ribbed conservatives except for Wilkinson, who has recently drifted to the center. By drawing from this pool, Thomas ensures he won't hear many progressive counterpoints to his conservative instincts. And that's okay with him. Thomas has said that picking clerks is like "selecting mates in a foxhole," explaining: "I won't hire clerks who have profound disagreements with me. It's like trying to train a pig. It wastes your time, and it aggravates the pig."

While Thomas is famously one of the most personable justices on the high court — the stories of his generosity to former clerks and court staff are myriad — he has also cultivated a with-us-or-against-us mindset that owes more to AM radio than George Will, and that aligns perfectly onto Trump's Fox News-inflected world view. Thomas is close buddies with Rush Limbaugh (he officiated at Limbaugh's third wedding) as well as fringe radio dogmatist Mark Levin.

A schism at SCOTUS

It feels increasingly evident that Trump's reactionary view of conservatism is causing a schism at the Supreme Court. Over the past two terms, a split has opened up between the two center-right justices, Roberts and Kennedy, and the three far-right justices, Samuel Alito, Gorsuch and Thomas. One explanation for the trend is that the center of the court is distancing itself from the hard-right crusaders, whom Democratic Sen. Mazie Hirono recently dubbed "the three horsemen of the apocalypse." This rift, if it continues, presages a possible split between the kinds of judges and justices Trump prefers — polemicists and bomb throwers — and the more traditional movement conservatives who have historically populated the federal bench.

If Trump seeds the lower courts with judges like Allison Eid who share Thomas' views, he stands to reshape the country for decades. That means that long after the Cabinet appointees and White House lawyers leave the scene, constitutional law will bear the thumbprints of Thomas and his clerks. Thanks to Trump, Thomas' ideas — about the unitary executive, the wall between church and state, and so much more — will now surely outlive both men.

© 2017 Slate

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