If you want to know where Clarence Thomas wants to lead the ultraconservative majority supreme court, look for the words “in an appropriate case” in his concurring opinions.
In June 2016 the US supreme court delivered a ruling on a relatively obscure aspect of patent law. It attracted little press attention, and even less notice was given to a short concurring opinion from Thomas.
Just two paragraphs long, Thomas’s opinion in Cuozzo Speed Techs v Lee set out his opposition to the Chevron doctrine, a legal precedent tangentially related to the case that had stood as settled law for decades. Chevron was a critical prop for federal agencies as they worked to protect the American people from pollution, workplace injuries and other public harms.
Thomas didn’t like the way Chevron granted federal experts leeway to reasonably interpret ambiguous laws – he claimed that was a legal “fiction” – and so in his concurring opinion he invited any interested party to challenge the precedent. “In an appropriate case,” he said, “this court should reconsider that fiction of Chevron and its progeny.”
A few months later, a group calling itself the New Civil Liberties Alliance (NCLA) was created with the express purpose of litigating cases before the courts, its top priority being to attack federal regulations and the “administrative state”. NCLA claimed to be non-partisan, but it was founded by former employees of – with $5m seed money from – Charles Koch, the billionaire tycoon who has been a catalyst of ultra-right causes for a generation.
In March 2020 NCLA filed a complaint in federal district court that answered Thomas’s call. Relentless Inc v Department of Commerce, twinned with a second case Loper Bright Enterprises v Raimondo, did just as the justice wanted – they challenged the Chevron doctrine as a supposed legal fiction.
As Thomas had intended, the twin cases then wound their way up the judicial ladder to the supreme court, and on to his desk.
Two weeks ago Thomas joined the other five rightwing justices who now control the supreme court in striking down the Chevron doctrine. Eight years almost to the day after he issued his concurring opinion, the cycle was now complete: his invitation to litigants had spawned a new organisation, backed by Koch, that custom-created a legal challenge designed to reach the supreme court, allowing Thomas and his hard-right peers to gut a cornerstone of modern federal government that had been the law of the land for 40 years.
Now the cycle begins again. In another bombshell ruling delivered at the end of the supreme court’s judicial term earlier this month, Trump v US, Thomas and the five other justices who form the ultra-right supermajority in effect invented a new judicial concept – that former presidents enjoy immunity from criminal prosecution for official White House acts.
The immunity ruling has been widely criticised as dangerous and misguided, not least by Sonia Sotomayor, the liberal-leaning justice who said in a scathing dissent that it made a president “king above the law”. Even that, though, was not enough for Thomas.
Yet again, he wrote his own concurring opinion in which he set out another extreme position. In this case, Thomas directed his ire against Jack Smith, the special counsel who has overseen two federal prosecutions against Trump for his interference with the 2020 election and for his post-White House hoarding of classified documents.
In his concurring opinion, Thomas argued that the appointment of Smith by the US attorney general, Merrick Garland, was invalid because the special counsel post had no basis in statute. The implication was clear: a litigant should come forward with a challenge to the institution of special counsel which, if successful, would in effect scupper the federal cases against Trump.
It was an audacious move by a justice already under fire for refusing to recuse himself from the immunity case. His wife, Ginni Thomas, has been revealed to have been an active player in Trump’s conspiracy to subvert the 2020 election result which was at its heart, yet he acted as though there had been no conflict of interest.
Thomas finds himself in increasingly hot water, with Congress showing signs of frustration about his questionable ethical behavior including undeclared luxury trips bankrolled by mega-rich Republican donors. This week, two US senators called on the justice department to investigate the gifts, while Alexandria Ocasio-Cortez, the progressive Democratic representative, moved articles of impeachment against Thomas and his fellow rightwing justice Samuel Alito over the alleged corruption.
Such inconveniences appear to trouble Thomas remarkably little. Certainly, there is no indication that he intends to moderate his actions, including his frequent appeals issued through concurring opinions for outside groups to bring radical litigation.
Since Thomas was appointed to the highest court in 1991, he has issued more than 250 concurring or dissenting opinions, many of which have proposed extreme rewritings of the law. Josh Blackman, a constitutional law professor at the South Texas College of Law, identified 16 of those opinions where the justice brazenly invited litigation using the phrase “in an appropriate case” – the exact same wording as he used to instigate the destruction of the Chevron doctrine.
In 2022, when the supermajority overturned the right to an abortion by eviscerating Roe v Wade, Thomas went further. In a concurring opinion, he proposed reconsidering access to contraception as well as same-sex relationships and marriage.
He has repeatedly suggested that the first amendment right to free speech should be restricted, saying that it should not apply to schoolchildren or to categories of prisoner. He went so far as to question New York Times v Sullivan, the 1964 supreme court precedent protecting news outlets from libel suits brought by public officials, that for 60 years has upheld press freedoms.
His latest stab at abolishing the post of special counsel is especially sensitive given this week’s calls from Congress for an official investigation into Thomas’s ethics. The Democratic senators Sheldon Whitehouse and Ron Wyden have written a letter to attorney general Garland calling for a new special counsel to be appointed with the task of digging into the justice’s potential violations of ethics, disclosure and tax laws.
So Thomas is now facing demands for a special counsel investigation at the same time as he agitates for that same prosecutorial position to be eradicated.
Though he grounds his objections to special counsels in broad constitutional language, Thomas will be all too aware that his argument is beneficial to Trump in his current battle with Smith. The judge in the confidential documents case, Aileen Cannon, whom Trump appointed to the federal bench, is currently considering a request by Trump’s lawyers that she dismiss the case on grounds that Smith is a principal government officer who should have required Senate approval.
