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Robert Reich: When I Was At Law School With Clarence Thomas – OpEd

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Just one year after Ruth Bader Ginsburg died, Republican nominees on the Supreme Court are on the way to overturning Roe v. Wade. But they’re going out of their way to speak out publicly against the partisanship they’re actively engaged in.

Last week, Clarence Thomas told a crowd of more than 800 students and faculty at Notre Dame that the Court shouldn’t be viewed in partisan terms, and that justices don’t base their rulings on “personal preferences.” But if not personal preferences, where exactly do they discover the law? Thomas never said. When asked whether the attorneys presenting oral arguments ever compel him to change his mind, Thomas said, “almost never.”

The previous week, the court’s newest member, Justice Amy Coney Barrett, told a crowd in Kentucky that Supreme Court justices are not a “bunch of partisan hacks.”

Methinks they doth protest too much.

If there’s any doubt about the partisan hackery of the Supreme Court’s six Republican appointees, it will be on full display in the Court’s next session when they overturn Roe in the case they’ve already teed up to do the dirty deed: Dobbs vs. Jackson Women’s Health Organization, about Mississippi’s law that bans almost all abortions after the 15th week. It’s scheduled to be argued December 1.

Flashback: I was in law school in 1973 when the Supreme Court decided Roe, protecting a pregnant person’s right to privacy under the 14th amendment to the Constitution. Also in my class at the time was Clarence Thomas, along with Hillary Rodham (later Hillary Clinton) and Bill Clinton.

The professors used what you probably know as the “Socratic method” – asking hard questions about the cases they were discussing and waiting for students to raise their hands in response, and then criticizing the responses. It was a hair-raising but effective way to learn the law.

One of the principles guiding those discussions is called stare decisis — Latin for “to stand by things decided.” It’s the doctrine of judicial precedent. If a court has already ruled on an issue (say, on reproductive rights), future courts should decide similar cases the same way. 

Supreme Courts can change their minds and rule differently than they did before, but they need good reasons to do so, and it helps if their opinion is unanimous or nearly so. Otherwise, their rulings appear (and are) arbitrary — even, shall we say? — partisan.

In those classroom discussions almost fifty years ago, Hillary’s hand was always first in the air. When she was called upon, she gave perfect answers – whole paragraphs, precisely phrased. She distinguished one case from another, using precedents and stare decisis to guide her thinking. I was awed.

My hand was in the air about half the time, and when called on, my answers were meh.

Clarence’s hand was never in the air. I don’t recall him saying anything, ever.

Bill was never in class.

Only one of us now sits on the Supreme Court. By all accounts, he and four of his colleagues — all appointed by Republican presidents, three by a president who instigated a coup against the United States — are getting ready to violate stare decisis, judicial precedent. 

I don’t expect them to give a clear and convincing argument for why. Do you?

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Robert Reich

Robert B. Reich is Chancellor's Professor of Public Policy at the University of California at Berkeley and Senior Fellow at the Blum Center for Developing Economies. He served as Secretary of Labor in the Clinton administration, for which Time Magazine named him one of the ten most effective cabinet secretaries of the twentieth century. He has written fifteen books, including the best sellers "Aftershock", "The Work of Nations," and"Beyond Outrage," and, his most recent, "The Common Good," which is available in bookstores now. He is also a founding editor of the American Prospect magazine, chairman of Common Cause, a member of the American Academy of Arts and Sciences, and co-creator of the award-winning documentary, "Inequality For All." He's co-creator of the Netflix original documentary "Saving Capitalism," which is streaming now.

2 thoughts on “Robert Reich: When I Was At Law School With Clarence Thomas – OpEd

  • September 27, 2021 at 1:09 pm
    Permalink

    No one will ever repeal Roe v. Wade, but keep the recommendation for their state under the original decision (i.e. Texas heartbeat rule). You seem to want to guide people to believe that it will go away. No, it is covered under the 14th (court cannot make law just interpret law, that’s why this is covered under the 14th) and there it will stay. Each state only has to follow the basis as the Supreme Court decision. That the first trimester belongs to the woman solely. After the second trimester, the fetus became viable, and the state could regulate or outlaw abortions in the interest of the potential life except when necessary to preserve the life or health of the mother. That IS NOT the removal at partisan behest. I’d like to remind the writer that the Supreme Court guides and states make their rules based on the Constitution, Supreme Court rulings, and the state’s constituency. So the state is following the recommendation of the court’s non-partisan decision Also, the Supreme Court in 1992 and 2007 upheld the rules (Republicans held bench majority) as recommended by the Roe v. Wade case. If this is to be truly changed it is up to the legislature of the country and not the court. Please try not to mislead as you seem to have here.

    Reply
  • September 28, 2021 at 12:40 am
    Permalink

    FBI findings says there was no coup, check the facts Robert!!

    Reply

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