What happened after Justice Thomas threatened to leave the Supreme Court
Conservatives closed ranks to support the justice — with legislative efforts, as detailed in Pro Publica, but also with public recognition. (And, of course, private flights.)
We were reminded on Monday morning of the pivotal role that 2000 played in American history.
Pro Publica’s latest report on Justice Clarence Thomas’s finances centralized, yet again, the many ways in which the future of the conservative movement — particularly the conservative legal movement — stood at a crossroads that year.
Conservative justices were dissatisfied. We have known that then-Justice Sandra Day O’Connor wanted to leave the court. Pro Publica’s reporting highlighted a threat, if not a plan, from Thomas that he — and even then-Justice Antonin Scalia — could also have left the court “within the next year or so,” as then-Chief Justice William Rehnquist was told in June 2000, due to the insufficiency of the justices’ salary.
Pro Publica then laid out the details of what amounted to an effort to keep Thomas financially happy and on the court. But, a further review of the record shows — in ways big and small — that the efforts were even more intensive than Monday’s Pro Publica report illustrated.
A pair of events before the Supreme Court’s 2000 term was to begin in October served as public efforts to highlight the justice’s value within the conservative movement. The events featured private flights and conservative luminaries celebrating Thomas as a “great justice” and “one of the great conservatives in the United States today.”
After Thomas reportedly shared his salary dissatisfaction with Rep. Cliff Stearns in connection with an off-the-record conservative retreat where Sterns was on a panel and Thomas gave the main address at a black-tie dinner on Jan. 8, 2000, Stearns went into action — seeking to address the justice’s salary concerns.
Within five months, a lot had happened. An astounding memorandum from the then-director of the Administrative Office of the United States Courts — published in Pro Publica’s report — expressed concern to Rehnquist about Stearns’ efforts in the first half of the year.
The June 2000 memo from Leonidas Ralph Mecham detailed Stearns’ actions to loop in a lobbying firm, which then in turn tried to get the administrative office to help with crafting legislation. It also noted that Thomas’s concerns were being shared among federal judicial groups. The memo even highlighted a then-sitting federal judge’s surprise at Thomas’s comments to Stearns.
As Pro Publica detailed, it’s not clear whether Rehnquist responded to the letter, but, there was movement — and it was noted by Rehnquist in his end-of-year report, which focused on what he called “the most pressing issue facing the Judiciary: the need to increase judicial salaries.”
Not only did Rehnquist’s report support and amplify Thomas’s dissatisfaction — coming as it was from the chief justice and allegedly concerning all judges — Rehnquist also explicitly highlighted one of the specific areas that Thomas had discussed “several times” with Judge David Hansen, then a federal appeals court judge: paid speeches, or honoraria.
Toward the end of the 106th Congress, there was a move to repeal the ban on honoraria for judges imposed by the Ethics Reform Act of 1989, in an effort to ameliorate the effect of lagging salaries and Congress's failure to implement cost-of-living adjustments envisioned by the Act. This move was met with an outcry against what some feared would create the appearance of impropriety, even though any honoraria would be governed by the strict standards of the Code of Conduct for United States Judges, just as they had been before 1989.
Bruce Allen Murphy described the developments in his book on Scalia: “At the request of Senator Mitch McConnell (R.-Ky.), Chief Justice Rehnquist sent a letter supporting the removal of the ban, but everyone understood that such a measure would be more beneficial to highly visible jurists such as Scalia than to the relatively anonymous lower federal court judges.”
The repeal never happened, but it is notable that the contemporaneous public commentary on the legislation was centered around Scalia — based in large part on critical reporting from Tony Mauro in September 2000 that noted that the effort was being discussed as the "Keep Scalia on the Court" bill — while the June 2000 letter to Rehnquist primarily highlighted Thomas’s interests.
A week before Mauro’s article came out, Thomas had been flown by private plane to the conservative Hillsdale College in Michigan, where he was celebrated on Sept. 9, 2000, by the school’s new (and current) president, Larry Arnn. Arnn — a co-founder of the Claremont Institute — told those assembled in introducing the justice that they should read a few legal opinions from Thomas: Those in Adarand Contractors v. Peña, Missouri v. Jenkins, and U.S. v. Lopez.
Arnn said that those Thomas opinions were written with “the beauty of John Marshall Harlan” and “the care and patience of Joseph Story,” and — regarding Lopez — that Thomas was “writing a little like John Marshall,” before turning the lectern over to “the great Justice Thomas.”
Arnn was and remains a prominent conservative figure — having been brought to Hillsdale in the wake of scandal to right the ship and, at one point, nearly become the head of the Heritage Foundation. Hillsdale remains, as The New Yorker put it earlier this year, “The Christian Liberal-Arts School at the Heart of the Culture Wars.”
In Thomas’s opening remarks that day in 2000, he noted that his wife, Ginni, and nephew, Mark — who figured into a past Pro Publica report — were in attendance. (Arnn, also, had highlighted Ginni Thomas’s attendance by asking her to stand and be recognized.) It would appear likely that they had flown with Thomas to the event, given the redaction on his disclosure report from that year.
In thanking the board, faculty, staff, and students, Thomas said, “especially Mr. Buckley” — a reference to the National Review founder William F. Buckley Jr., who had helped to recruit Arnn from Claremont to take the job in Michigan and was recognized from the stage that day alongside Thomas.
Two days later, after another private flight, Thomas was introduced for another address, this one at the University of Louisville.
That day, it was none other than Mitch McConnell who introduced Thomas — as “my personal friend and one of the great conservatives in the United States today.”
Thomas opened his remarks by thanking McConnell for having invited him. The justice then went into a discussion of criticism of judges.
"My view is if you cannot take a little criticism, I wonder if you should be a judge," Thomas said — before going on to explain why he viewed current criticism of judges as unfair. “What does distress me is the quality of the criticism. I think that’s abysmal. It often seems that all one needs is a couple of drinks and a mouth to suddenly become an expert on the court. We don’t do that in any other area. Usually we think that you have to know something.”
Three months later, on Dec. 11, 2000, the Supreme Court would hear oral arguments in Bush v. Gore. Its 5-4 decision the next day effectively ended the 2000 election, and George W. Bush became president the next month.
One by one, every justice to have voted in Bush v. Gore left the court.
Except Thomas. Twenty-three years later, only Thomas remains.
Chris Geidner has written about the Supreme Court for more than 20 years. An award-winning journalist, his independent legal reporting at Law Dork has garnered him more than 25,000 subscribers. To support his work, become a free or paid subscriber today.