WASHINGTON — Justice Clarence Thomas says the Supreme Court has been changed by the shocking leak of a draft opinion earlier this month. This opinion indicates that the court may overturn Roe v. Wade’s right to abortion, which was established nearly fifty years ago.
Thomas, a conservative, joined the court in 1991. He has always called for Roe to be overturned. Thomas described the leak as an unacceptable breach of trust.
“When you lose that trust, especially in the institution that I’m in, it changes the institution fundamentally. The other person starts to see you. It’s like kind of an infidelity that you can explain it, but you can’t undo it,” he said while speaking at a conference Friday evening in Dallas.
The court has said the draft does not represent the final position of any of the court’s members, and Chief Justice John Roberts has ordered an investigation into the leak.
Thomas was nominated by President George H.W. Bush, said it was beyond “anyone’s imagination” before the May 2 leak of the opinion to Politico that even a line of a draft opinion would be released in advance, much less an entire draft that runs nearly 100 pages. Politico has also reported that in addition to Thomas, conservative justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett had voted with the draft opinion’s author, Samuel Alito, to overrule Roe v. Wade and a 1992 decision, Planned Parenthood v. Casey, that affirmed Roe’s finding of a constitutional right to abortion.
Thomas said that previously, “if someone said that one line of one opinion” would be leaked, the response would have been: “Oh, that’s impossible. No one would ever do that.”
“Now that trust or that belief is gone forever,” Thomas said at the Old Parkland Conference, which describes itself as a conference “to discuss alternative proven approaches to tackling the challenges facing Black Americans today.”
Thomas also said at one point: “I do think that what happened at the court is tremendously bad…I wonder how long we’re going to have these institutions at the rate we’re undermining them.”
Thomas also touched in passing on the protests by liberals at conservative justices’ homes in Maryland and Virginia that followed the draft opinion’s release. Thomas said that it was not a characteristic of conservatives to act in this manner.
“You would never visit Supreme Court justices’ houses when things didn’t go our way. We didn’t throw temper tantrums. I think it is … incumbent on us to always act appropriately and not to repay tit for tat,” he said.
On Saturday, protests across the nation and at the Supreme Court were planned.
Neither Thomas nor any of the attendees at the Dallas session made mention of the Jan. 6 insurrection or the actions of Thomas’ wife, Virginia, in fighting to have the results of the 2020 presidential election overturned.
Clarence Thomas spoke before the audience in a conversation with John Yoo. John Yoo is now a Berkeley Law Professor, but Thomas worked as a clerk for one year during the 1990s.
Each justice generally has four law clerks every year and the current group of law clerks has been a focus of speculation as a possible source of the draft opinion’s leak. Along with the justices, some administrative staff have access to draft opinion information.
Thomas answered questions from the crowd, one of which was about friendships among conservative and liberal justices. This included a question from a man asking Thomas about friendships, like the well-known friendship that existed between Justice Ruth Bader Ginsburg (liberal) and Justice Antonin Scalia (conservative). “How can we foster that same type of relationship within Congress and within the general population?” the man asked.
“Well, I’m just worried about keeping it at the court now,” Thomas responded. Thomas continued to praise former colleagues. “This is not the court of that era,” he said.
Despite his comments, Thomas seemed in good spirits — laughing heartily at times. Yoo, who is known for writing the so-called “torture memos” that the George W. Bush administration used to justify using “enhanced interrogation” techniques after the Sept. 11 terror attacks, said at one point that he had taken pictures of notes Thomas had taken during the conference.
“You’re going to leak them?” Thomas asked, laughing.
Yoo responded: “Well, I know where to go…Politico will publish anything I give them now.”
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