Clarence Thomas’s Insurrectionist Dissent

In  a blow to conspiracy theorists who insist the 2020 election was stolen from Trump, the United States Supreme Court declined to hear a case brought by Republican legislators in Pennsylvania who wanted to throw out that state’s mail-in ballots. Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch said they would have heard the case, but they didn’t have a fourth to make it happen.

However, Justice Thomas did use the opportunity to write a startling dissent that pushes Trump’s big lie: that voter fraud is rampant, even though they can’t seem to find a single substantial instance of it. It’s a distressingly cynical, yet predictable, move from Thomas, a voter-suppression enthusiast who is married to one of Trump’s staunchest supporters.

There was every good reason for the Court not to hear the Pennsylvania case. First and foremost, of course, is the fact that the election already happened, Joe Biden already won, and is already president. That makes the initial relief sought by the plaintiffs—please toss out enough ballots to flip Pennsylvania for Trump—about as moot as a case can get, and even the three dissenting judges acknowledged that the numbers just weren’t there. Even if you bought whatever tangled story Trump and the Pennsylvania legislators were selling, not enough ballots would be affected to flip the state.

No matter, said the dissenters. The court should take the case because “a decision would provide invaluable guidance for future elections.”

What sort of guidance do they need to provide, exactly? Elections in the United States are inherently decentralized, run at the state level. States get to decide how they want to run their elections. Normally, the conservative members of the Supreme Court are big fans of this concept, so much so that they destroyed the part of the federal Voting Rights Act that allowed the federal government to stop states from passing racist voting laws. But when it comes to ensuring that Republicans get reelected, some conservative judges seem very eager to jump in and let the Supreme Court tell states what they can and can’t do.

Justice Clarence Thomas doesn’t just want to tell states what to do. He wants to obliterate our confidence in elections and pave the way for the kind of nihilistic rage that gave us January 6.

Though Thomas does a better job explaining his worldview, in the end, it’s no different than that of Rudy Giuliani or Sidney Powell: Unsupported allegations of widespread fraud and a persistent belief that just because there is no evidence of voter fraud, doesn’t mean there isn’t voter fraud. Sure, Powell went way, way out there by insisting on a vast international conspiracy, while Giuliani floated that it was a domestic endeavor put together by “big cities controlled by Democrats.” Thomas doesn’t do that. Instead, he loftily declares that: “An election free from strong evidence of systemic fraud is not alone sufficient for election confidence.”

And Thomas is pretty sure, just as Trump was, that mail-in ballots are the gateway drug to massive election fraud. Except that is simply not true. Utah, a staunch GOP state, votes mostly by mail, and there’s no systemic complaint about that state’s system. Arizona’s done just fine with it for nearly 30 years. Study after study after study after study has found that voter fraud is so negligible as to be functionally nonexistent, no matter what the method.

Ultimately, what Thomas, along with Trump, Powell, Giuliani, and other fellow travelers, want is that election officials everywhere somehow prove a negative again and again and again. Republicans can lurch up and cry “fraud,” and there’s no burden of proof required on their end. And even when elections are “free from strong evidence of systemic fraud,” somehow, fraud still lurks. And even when someone is just lying about fraud? That’s a problem too, and Thomas wants a “robust mechanism to test and disprove it.”

It’s an absurd framing, particularly since there are many robust mechanisms to verify that elections are sound and fraud-free. There are post-election audits, which double-check both the machine counts and the procedures used in the election. There are hand recounts if the margin of victory is narrow. And yes, there are court cases—62 in all, of which Trump lost 61.

So what is Thomas’s preferred solution? It’s not litigation, even though he wants to use this particular piece of litigation to make law about voting. No, Thomas thinks that voting by mail is bad in part because tallying those ballots is more work and requires subjective assessments like signature verification, which can lead to complicated litigation. So the only solution, apparently, is to simply not allow mail-in ballots or other voting methods that expand the franchise of voting.

We don’t need to guess what happens when people lose confidence in elections, as Thomas urges them to do here. We get January 6, an angry roiling mob that’s been told there’s fraud everywhere, and the only way they can stop it is to quite literally storm the capital.

This worldview also leads, inevitably, to the behavior of Clarence Thomas’s wife, Ginni Thomas. Even as numerous Trump-related cases came before the Supreme Court, Justice Thomas refused to recuse himself while his wife continued to be a high-profile Trump cheerleader.

She repeatedly wrote letters to the White House demanding Trump purge “disloyal” people. She visited the White House to express her discontent about transgender people serving in the military, even as cases about that issue wound their way through the courts. She pushed Trump’s anti-Muslim travel ban, which also came before the Supreme Court, saying she wanted to create a “ground up-grassroots army for pro-Trump daily action items to push back against the left’s resistance efforts who are trying to make America ungovernable.”

And then, of course, came the insurrection on January 6.

The morning of January 6, Ginni Thomas actively encouraged the crowd in their efforts to overturn the election. She tweeted her “LOVE” to the demonstrators and also tweeted “GOD BLESS ALL OF YOU FOR STANDING UP or PRAYING.” She went dark on social media after things turned violent, but she doesn’t seem to have any regrets about her support for the rioters. Indeed, to the extent she apologized, it was only to her husband’s former law clerks for basically being too passionate, remarking, “Many of us are hurting, after leaving it all on the field, to preserve the best of this country.”

The best of this country, like violent insurrections?

Clarence Thomas’s dissent is dangerous rhetoric cloaked in the dry language of the law. It expresses a deep distrust in American elections that is entirely unwarranted and underpins the foundation of violent right-wing protests. It purports to be in favor of “confidence” in elections while complaining that there are “unclear rules” that “threaten to undermine the system.”

The rules weren’t unclear. What Thomas, Trump, and others are really mad about is that voting was made easier, that the thicket of rules was relaxed to ensure people could safely vote during a once-in-a-century pandemic.

This Pennsylvania case may not have been the right vehicle to suppress votes on a wide scale or to overturn an election, but the conservatives on the Court are eager for a better case that will allow them to do so. In fact, they’re hearing two voting rights cases next week, one of which would bar someone from handing their absentee ballot to someone else to deliver to the election office. It’s yet another attempt to make voting more difficult, which is exactly what Thomas wants.

The insurrection will leave one of those indelible scars on America, a moment like Pearl Harbor, Watergate, and 9/11 where there is a distinct before and after. Clarence Thomas, though, would have us live forever in the chaos and violence of the insurrection, clinging to a belief in voter fraud that is entirely unsupported.