Justice Clarence Thomas embraces the Big Liar, and the Big Lie
The dissenting opinion by Supreme Court Justice Clarence Thomas in Republican Party of Pennsylvania v. Degraffenreid should send chills running down our collective spine. The Court denied a petition for certiorari seeking its review of a decision by the Pennsylvania Supreme Court that allowed mail-in ballots in November’s presidential election arriving up to three days late to be counted because of pandemic-related postal delays.
Thomas used his exalted platform to give credence to the Big Lie that nearly toppled our democracy. He perpetuated the myth that election fraud compromised the legitimacy of the election of Joe Biden as President of the United States.
Thomas was careful not to go too far, refraining from making a direct connection between election fraud and the outcome of the election in his dissenting opinion. But he repeatedly referred to the “vastly more prevalent” risk of fraud in the use of mail-in ballots as a reason that the Court should have granted certiorari and reviewed the Pennsylvania court’s decision.
His message undoubtedly got through to conspiracy theorists. Perhaps that is all that Thomas wanted to do, throw a bone to those who continue to believe that the election was stolen from Donald Trump, apparently including his wife Ginni. Regardless of his intent, treating a dangerous fiction as a fact in his dissenting opinion was reckless and unforgivable.
Thomas propagated the lie where it can do the most harm, inside this country’s judicial system. And not just in any court, but in the highest court of the land.
Preserving the last bastions of truth
Despite years spent in courtrooms, it was not until this past year that I fully appreciated the role of the courts in our society. As the centrality of truth seemingly becomes less valued by other institutions and in society in general, the importance of courts as the last bastions of truth and justice increases.
It was the courts that exposed the Big Lie for what it was, rejecting claims of election fraud in over 50 cases as not based on facts. The judges that presided over those cases were instrumental in protecting our democracy from a very real threat. They played a crucial role that I may have taken for granted in the past. Not anymore.
Our judicial system has evolved over the centuries for the primary purpose of making a reliable determination of facts upon which the law can justly be applied. Rules of evidence are intended to prevent rumor and innuendo from poisoning those determinations. Thomas disregarded the historical function and importance of the judicial system and poured that poison into the system from the top down.
The assertion by Thomas that mail-in balloting generally is vulnerable to fraud is not supported by experience. There is no evidence that such fraud played the slightest role in the outcome of the 2020 presidential election in any state. In other words, Thomas shamelessly drew the factual predicate for his dissent directly from the Big Lie.
An outlier even among other conservatives on the bench
Justices Samuel Alito and Neil Gorsuch also dissented from the Court’s denial of certiorari. They did so, however, in in a separate opinion based solely on the legal question of whether the Elections or Electors Clauses of the United States Constitution prohibited the Pennsylvania Supreme Court from waiving the deadline for receipt of mail-in ballots established by the Pennsylvania legislature.
Their opinion contained not a single reference to claims of election fraud. The refusal of these two conservative justices to sign on to his opinion is the best illustration of how far astray Thomas went in trying to taint the proceedings of the Court with the Big Lie.
Thomas knew precisely what he was doing. There is no doubt in my mind that his reference to unproven theories about election fraud reflected his personal disappointment that Joe Biden won the election. And he wanted Trump’s supporters to know that he stood with them. He came all too close to endorsing the sedition that culminated in the insurrection at the United States Capitol on January 6th.
Concerns about threats to democracy that seemed overblown before January 6th no longer seem that way. Words count, especially in opinions written by Supreme Court justices.
We depend upon the rule of law to guarantee free and fair elections and preserve democracy. Heaven help our democracy if it becomes commonplace for judges and justices to do what Thomas did by confusing adherence to the rule of law with the pursuit of partisan political interests.
The reality is that Thomas will face no sanction for his reckless language. That does not relieve lawyers and others from the obligation to condemn it.
