On Feb. 4, President Donald Trump gave his State of the Union address. On Feb. 5, the impeachment trial concluded with a whimper. Trump was acquitted of the two charges against him.
In the last column, we noted that Chief Justice John G. Roberts Jr. was not presented with the prospect of having to break a tie vote. During the senatorial question period, Roberts was asked what he would have done. In this column, we address that enigma and another judicial enigma.
Roberts, the impeachment enigma
On Friday night, Senate Minority Leader Chuck Schumer, D.-N.Y., raised the question of a tie with Roberts. The exchange that took place:
Schumer: Is the chief justice aware that in the impeachment trial of President [Andrew] Johnson, chief justice [Salmon] Chase, as presiding officer, cast tie-breaking votes on both March 31 and April 2, 1868?
Roberts: I am. … The one concerned a motion to adjourn; the other concerned a motion to close deliberations. I do not regard those isolated episodes … as sufficient to support a general authority to break ties.
If the members of this body elected by the people … divide equally on a motion, the normal rule is that the motion fails. I think it would be inappropriate for me, an unelected official from a different branch of government, to assert the power.…”
Some suggested Roberts had power to subpoena witnesses, but as those who have studied Roberts knew, he was not likely to do anything that might be seen political.
His response is a bit puzzling, as the vice president is from a different branch of government and yet breaks ties. Also, if the chief justice has no power to impact ties and does not enforce the few rulings he did make (Sen. Rand Paul, R-Ky., comes to mind, tweeting and later speaking at a news conference, then announcing the whistleblower’s name in closing arguments on the Senate floor after Roberts refused efforts to name the whistleblower), then it is unclear what the Constitution’s words “the chief justice shall preside over the Senate trial” mean. A true enigma.
One recommendation — remove the robe in any future impeachments, as the job clearly has no judicial function.
The Clarence Thomas enigma
In 2019, Corey Robin wrote a book, “The Enigma of Clarence Thomas.” Robin’s goal is to try to explain Justice Clarence Thomas’ Supreme Court work by looking at the life and experiences of Thomas and how those views reflect in his opinions.
For this book, Robin “opted for interpretation and analysis rather than objection and critique.” Robin does this through reviewing Thomas in three areas: race, capitalism and the Constitution.
One source for the title may have been the transcript of Thomas’ Senate confirmation hearing, where “the word ‘enigma’ appears 30 times.” Robin makes clear that “Thomas’ originalism is at best episodic” and is not always consistent with originalism, writing:
“Thomas’ jurisprudence features little of the consistency of legal high principle that his conservative admirers … claim for him, but neither is it the opportunistic hash that his liberal critics try to make of it.”
Robin looks at Thomas’ youth and his time at the College of the Holy Cross and then Yale Law School. During those years, Thomas was a self-described “radical” and when questioned at his confirmation hearing “what he minored in, he said, ‘I think protest.’”
Thomas was “truly on the left” and “thought George McGovern was a conservative,” according to Thomas in a 1996 interview. While at Yale, “Thomas developed an understanding of racism he would never shake. Whites — southern and northern, liberal and conservative, rural and urban — are racists.” Robin asserts that the black nationalism of Thomas is “hiding in plain sight.”
Robin turns to capitalism and attributes Thomas’ friend telling Thomas about a new book, “Race and Economics,” by Thomas Sowell for cementing Thomas’ views on economics and capital. Robin also addresses Thomas’ view that “African Americans … should cease to look to electoral politics as a means of bettering their situation.”
Thomas had ambitions to be on the Supreme Court for years. Robin writes, “As far back as 1981, perhaps earlier, he had expressed a desire for a seat.…” At his confirmation hearings, Thomas spoke much of natural law, but natural law does not appear in Thomas’ jurisprudence.
Robin concludes: “Clarence Thomas is the most extreme justice on the Supreme Court. He is also the most emblematic. His jurisprudence may be a bitter mix of right-wing revanchism and black nationalism, but it is distinctively American and of the moment.”
Robin ties the Trump administration and his followers to Thomas, writing that “Thomas’ black nationalism is mirrored not only by the white nationalism of Trump, but also by the racial despair of the left.”
He also notes the extensive influence of Thomas in the Trump administration, citing Thomas’ important decisions in recent years as well as Thomas’ clerks having high-level positions in the Trump administration.
Eleven former clerks having been nominated to federal judge positions. Robin concludes that no “other justice under Trump has had as many clerks appointed to the judiciary.”
Robin’s excellent book leaves us with much to think about and explains a great deal about Thomas, but Thomas remains largely an enigma.
We continue to see the deep divide facing our country. Recent events did zero to answer the questions about the judicial enigmas.