'Dubious': Legal expert slams Justice Thomas’ 'partisan historical revisionism'

26 June 2024

The U.S. Supreme Court, on June 20, handed down its ruling in the tax case Moore v. United States. With conservative GOP Justice Brett Kavanaugh writing the majority opinion, the High Court upheld the Mandatory Repatriation Tax as constitutional. And Kavanaugh was joined by Chief Justice John Roberts as well as Democrat-appointed Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson.

The dissenting opinion came from Justice Clarence Thomas, who was joined by Justice Neil Gorsuch.

Slate's Mark Joseph Stern offers scathing analysis of Thomas' dissent in an article published on June 26, arguing that the far-right justice is once again "rewriting" history.

"Justice Clarence Thomas is a master at the art of bogus history — rewriting the past to give the Constitution a new, dubious meaning that happens to align with the Republican Party platform," Stern explains. "Even by his own lofty standards, the justice outdid himself in Moore v. U.S., last week's major tax case. Thomas' dissent is a masterwork of partisan historical revisionism, manipulating reality so seamlessly that an unsuspecting reader might actually think he is telling the truth."

Stern continues, "He isn't, not even close: Thomas' goal in Moore is to eviscerate the 16th Amendment, which legalized the federal income tax in 1913. And, as is so often the case, the justice marshals his argument by diminishing a progressive constitutional amendment as some illegitimate affront to the Framers' original, divinely inspired design."

Stern argues that Thomas "simply does not grant constitutional amendments the same respect that he gives to the original Constitution."

"His jurisprudence is inspired by 'natural law,' a theory that interprets the Constitution as, essentially, a divine revelation to the founders that codifies rights bestowed by a higher authority," Stern laments. "Under this view, the product of the Constitutional Convention was nearly perfect, minus its accommodation for slavery — yet, as his Moore dissent illustrates, the justice is willing to downplay or write off this glaring defect when necessary."

Mark Joseph Stern's full analysis for Slate is available at this link.

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