Editor’s note: The following first appeared in Dorf on Law.

On Friday, Justice Clarence "I hate DC" Thomas gave a speech to the Eleventh Circuit Judicial Conference that was so full of anger, false narratives, and whining that it is tragically perfect for the age of Trump. Here are some lowlights annotated.

In response to a question about mean-spiritedness, he said:

“I think there’s challenges to that. We’re in a world and we — certainly my wife and I the last two or three years it’s been — just the nastiness and the lies, it’s just incredible.”

Translation: They would not let my wife and me overturn a presidential election.

"Reckless" people in Washington, DC, will "bomb your reputation."

Translation: Being the darling of Heritage, Fed Soc, and Fox, and having a former clerk as the 10 o'clock anchor on Fox, are not enough for this poor little snowflake.

“They don’t bomb you necessarily, but they bomb your reputation or your good name or your honor. And that’s not a crime. But they can do as much harm that way."

Translation: I have now been subject to a "high-tech lynching" and to word bombs as harmful as real bombs, and that is why, and the only real reason why, I want to overturn New York Times v Sullivan. When I'm criticized, I don't want to have to meet that pesky actual malice standard.

"The regular people I think are being disenfranchised sometimes by the way that we talk about cases.”

Translation: I realize that I am in fact disenfranchising regular people alive today when I take away their rights or subject them to gun violence based on conclusions I justify with cherry-picked quotations describing the practices of 18th-century enslavers, but I can call it the opposite because everyone here is too polite and too scared to say anything.

Editorial comment: You have nothing in common with "regular people."

Why he likes traveling outside DC: “You get to be around regular people who don’t pride themselves in doing harmful things, merely because they have the capacity to do it or because they disagree."

Translation: Only billionaires and Supreme Court justices get to do "harmful things because they have the capacity," not anyone else in our nation's capital.

Editorial Comment: How many times is this lackey to billionaires going to mention "regular people" in one speech?

“I wound up in this job ... and this is, we pray, to do whatever it was that God wanted me to do, what I was being called to do. But being in public life is not something I would have chosen to do.”

Translation: I have been here 33 years and will not leave until my very last breath (unless they take away my billionaire connections and then I'm out of here ASAP).

Editorial Comment: For the record, God didn't call you to your current job; George H.W. Bush and a too-readily-cowed Senate did.

While telling a story about walking with friends he said that was “before they started attacking my friends; I hope I still have some."

Translation: Don't take away my luxury RV, my private flights and my yachts, please!!!

“I think what you are going to find and especially in Washington, people pride themselves on being awful. It is a hideous place as far as I’m concerned."

Translation: That is why I have lived and worked there since 1979, worked for the Congress, worked for the president, and worked for the Supreme Court. I am the living embodiment of the separation of powers and if I have to live in a hell hole to spread my evil, so it will be, as that is what I was put here to do.

Obvious Editorial Comment: If you hate DC so much, if you hate government so much, if you love being around regular people so much (like Harlan Crow and Leonard Leo, the most regular of regular people) then for the love of God: RESIGN.

Editor’s note: The following first appeared in Dorf on Law. As a reminder, click on the headline for a easy-reading experience. –JS

Listening to the oral argument in the Trump immunity case last week, I could not help but think how surreal the conservative justices were acting. It felt like they were going out of their way to ignore our immediate and pressing crisis involving an ex-president who tried to resist the peaceful transfer of power with violence and lies.

The male conservatives also pretended that every potential future issue involving presidential immunity had to be worked out in this case, which is exactly the opposite position of the “good for one day” language and theme of Bush v. Gore. The only similarities between the two cases are Republicans looking out for Republicans, which is exactly what one would expect from a highly partisan ultimate veto council staffed with a majority of Republicans.

The disaster that was the Trump v. United States oral argument reminded me of how little the Roberts court has actually cared about rule of law values and legal transparency during its 18-year run. Leaving aside the overturning or narrowing of numerous landmark cases, from abortion to affirmative action to the free exercise of religion, the Roberts court has consistently, in the court's most important and publicized opinions, engaged in subterfuge, sleight of hand and even outright lying.

In this post, I discuss landmark cases involving affirmative action, health care, voting rights, separation of church and state and the Second Amendment to show, not that I disagree with the results (I do), but instead to demonstrate that no matter what side of the issues you may favor in these country-defining cases, the Roberts court has resolved these questions in a lawless manner because of reliance on demonstrably false facts and obviously misleading descriptions of prior rulings and other legal materials.

In short, the Roberts court has acted lawlessly from the beginning.

Affirmative action
In the first full term of the Roberts court, the conservative justices got off to a terrible start. Parents, teachers, students and school board officials in Seattle and Louisville worked tirelessly for years to devise plans to desegregate their public schools, because most efforts had been stymied by red-lining, residential housing patterns and other forms of institutional racism.

Although their plans were not identical, both cities required a minimum level of desegregation by utilizing racial balancing criteria. These efforts did not affect large numbers of pupils, but a handful of students were not allowed to attend their neighborhood schools. These desegregation goals were not required by court order. but were the products of substantial negotiations among local officials and parents.

The court struck down these important efforts in a 5-4 highly controversial decision. However one feels about the result, part of the majority's rationale is offensively incorrect.

The court's rejection of the efforts by school officials to bring more racial diversity to their public schools was short on text, history and tradition, but did erroneously rely, incredibly, on the plaintiffs’ brief in Brown v. Board of Education for the proposition that “the Fourteenth Amendment prevents states from according differential treatment to American children on the basis of their color or race.”

The court's efforts to recast Brown as an anti-affirmative case were demonstrably false, unnecessary, and nothing less than bad historical fiction.

This out-of-context snippet from a brief, not the actual opinion, misstates both the background to and the rationale of Brown. There is not a syllable in the brief or the case discussing the possibility of local school districts trying on their own to address racial segregation in public schools, because in many states they were not allowed to, and because the case was about the total separation of the races under state law.

Even worse, the brief referred to by the court was written by former Supreme Court Justice Thurgood Marshall and other lawyers associated with the NAACP. We know with certainty that the authors of that brief favored affirmative action once it came along in the 1970s, because Marshall told us so in no uncertain terms on numerous occasions. It is likely that the furthest thing from the minds of the authors of the plaintiffs’ brief in Brown in 1953 was what the 14th Amendment had to say about voluntary efforts by government officials to desegregate public schools given longstanding laws requiring the total separation of the races in public schools.

It was wrong for the court to pretend Brown was on the side of preventing Louisville and Seattle from making efforts to desegregate their own public schools. And it was insulting to suggest that a brief written by Thurgood Marshall, America's most important civil rights litigator, and a man who fought tirelessly in favor of affirmative action, would stand for such a proposition.

The truth is that he didn't, the brief didn't and, unlike the merits of affirmative action, there are not two sides to that debate. The court's efforts to recast Brown as an anti-affirmative case were demonstrably false, unnecessary, and nothing less than bad historical fiction.

Health care
One of the issues in the first Affordable Care Act case was whether Congress could use its spending power to require states to adopt more permissive requirements for people to be on Medicaid as a condition for states receiving future Medicaid payments from the federal government.

The law went into effect in 2010, but this part of the law was inoperative until 2014, and even then, the federal government was going to pay for the larger number of eligible beneficiaries for the first few years. Medicaid had been amended over 50 times since its inception and states had to agree to abide by the new conditions if they wanted to continue to participate in the program.

For the first time since the 1930s, the court said Congress had exceeded its spending power authority because the condition was too coercive. Of course, the states had every legal right to refuse the federal money, so it is hard to see the coercion. More importantly, in building the argument for striking down the new requirement, the court described the ACA as including "post-acceptance or retroactive conditions.”

It should go without saying that judges should not lie.

This description is, quite simply, a lie. There is no interpretation of "post-acceptance" or "retroactive" that fits a law passed in 2010 that gives states notice that the requirements for eligibility would change four years later, and no additional money from the states would be needed for several years after that. The law was in no sense retroactive, nor did it in any way impose a post-acceptance condition. Yet those false ideas were an integral part of the court's misguided and inaccurate rationale.

One more thing about this case. Some may protest that this part of the opinion was 7-2, not 5-4, and Justices Kagan and Breyer went along. Of course, Plessy was 8-1 and Roe 7-2, and both cases have now been overturned. More importantly, reporting from CNN's Joan Biskupic shows that Roberts coerced Kagan and Breyer to join the Medicaid part of the opinion in return for Roberts upholding the individual mandate part of the law as a tax. That reporting makes sense because both Kagan and Breyer consistently take a broad view of Congress' powers.

People may not remember how important and in the news NFIB v. Sebelius was back in 2012. In this front-page case affecting millions of Americans, the court described a part of the law that would not go into effect for four years as "retroactive." But the law was prospective only, and it should go without saying that judges simply should not lie.

Voting rights
The Supreme Court’s 5-4 decision in Shelby County v. Holder, striking down Section 5 of the Voting Rights Act, is considered by many scholars to be one of the worst decisions in our country’s history. But however one feels about the case, part of the court's rationale is almost too terrible to be true. But, alas, it is.

The opinion authored by Chief Justice Roberts adopted an equal state sovereignty principle requiring Congress to have a strong reason to treat different states differently when exercising its power to enforce the 15th Amendment through, according to the text, “appropriate legislation.” To justify that anti-historical and non-textual principle, Roberts relied on some bizarre statements he made in a previous case, Northwest Austin v. Holder, involving an earlier challenge to the Voting Rights Act.

No case more clearly demonstrates the Roberts court's playing loose with both the truth and the rule of law than Northwest Austin. In that case, the court said the following: "The [Voting Rights] Act also differentiates between the States, despite our historic tradition that all the States enjoy 'equal sovereignty' ... Distinctions can be justified in some cases. 'The doctrine of the equality of States ... does not bar ... remedies for local evils which have subsequently appeared,' (citation to South Carolina v. Katzenbach omitted). But a departure from the fundamental principle of equal sovereignty requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets."

This overturning of a major constitutional principle in a landmark, front-page case by deleting key words and replacing them with ellipses is egregiously bad behavior.

Before Roberts wrote those words, there never was any, much less a “fundamental principle,” of equal state sovereignty limiting Congress’s powers under the Reconstruction Amendments to pass laws regulating our country. That statement is not debatable. So how did the court get there?

As to the Fifteenth Amendment, the court in Katzenbach explicitly rejected the absurd idea of equal state sovereignty in the very same sentence Roberts cites above, but with the most important words replaced by an egregiously misleading ellipse. Here is the original passage from Katzenbach:

“In acceptable legislative fashion, Congress chose to limit its attention to the geographic areas where immediate action seemed necessary ... The doctrine of the equality of States, invoked by South Carolina, does not bar this approach, for that doctrine applies only to the terms upon which States are admitted to the Union, and not to the remedies for local evils which have subsequently appeared.

The phrase “for that doctrine applies only to the terms upon which States are admitted to the Union,” disappeared completely from Roberts’s quotation. Nevertheless, in Shelby County, the conservative majority used this alleged “fundamental principle” of equal state sovereignty several times to argue that Section 5 of the VRA was unconstitutional despite the undeniable fact that no text in the Constitution supports such an idea, and the court explicitly rejected the very same idea in a landmark case.

In Shelby County, Roberts cited his own opinion in Northwest Austin, which completely misquoted and mischaracterized what Katzenbach said about the issue. In fact, Katzenbach said the exact opposite about equal state sovereignty in the part of the opinion that Roberts omitted with ellipses.

This overturning of a major constitutional principle in a landmark, front-page case by deleting key words and replacing them with ellipses is egregiously bad behavior by the Roberts court. Did Roberts think no one would notice? Unlikely, as Justice Ginsburg made these exact same points in dissent so the conservatives knew what Roberts was saying about equal state sovereignty was demonstrably false. Openly overturning Katzenbach on this point would have been bad enough but doing it in this misleading manner smacks of deceit all the way down.

Separation of church and state
In Trinity Lutheran v. Comer, the plaintiff religious school challenged a provision of the Missouri Constitution prohibiting public money going to religious institutions. Trinity Lutheran challenged this exclusion when denied the opportunity to compete for state grants to improve school playgrounds. The lower courts upheld the constitutional provision, which is similar to provisions in many other state constitutions. Although some of these provisions were likely enacted due to anti-Catholic bias in the 19th century, there was no evidence in the record that Missouri made its decision because of such bias.

The court ruled for the church school in a case it never should have decided. The school did not seek damages but simply prospective injunctive relief that its application be treated equally in the future with secular schools. A few months before the decision was handed down, however, the newly elected Republican governor of Missouri announced he was changing the state’s school funding policy. In the future, the governor announced, religious schools would be treated in exactly the same manner as non-religious schools, which was the only relief Trinity Lutheran asked for in its complaint.

Article III’s requirement of a “case or controversy” at a bare minimum requires two parties arguing over something real. In this case, we had two aligned parties arguing over nothing.

After the governor made his announcement, the court asked the parties whether the case was moot. Both the school and the state, now on the same side of this dispute, asked the court to resolve the case anyway because they wanted a final decision striking down the state’s constitutional amendment. The legal basis for their request that the court rule on the merits was an exception to the mootness doctrine that a defendant’s "voluntary cessation of its allegedly illegal conduct does not necessarily moot a case." The court summarily accepted that argument in a footnote.

The court cited only one case for that rule but there was a claim for money in that case (not true in Trinity), and one of the parties in that case urged the court to dismiss it (not true in Trinity). Simply reciting the magic words “voluntary cessation of [illegal conduct] does not [necessarily] moot a case” did not give the religious school a personal injury that could be redressed by the court, nor did it make the claims ripe for adjudication. The state said it had no plans to resume the allegedly illegal behavior, and there was no reason to doubt that assertion. That in some hypothetical future election a new governor of a different political party might (or might not) be elected and might (or might not) change the policy back is simply too speculative to support federal court jurisdiction.

All the parties in Trinity agreed on every single issue in the case, both the merits and the jurisdictional question. Article III’s requirement of a “case or controversy” at a bare minimum requires two parties arguing over something real. In this case, we had two aligned parties arguing over nothing. I cannot find any other Supreme Court case in American history where the parties agreed on every single issue in the case. But the Roberts court wanted to resolve the controversy, so it did. Never mind that there was no dispute at all between the parties and only the slenderest of possibility the controversy could ever arise again.

The Second Amendment
In New York State Pistol & Rifle Ass’n v. Bruen, the Roberts court issued one of the most unusual and potentially dangerous opinions in American history. Justice Thomas, writing for the conservatives, instructed lower court judges to rely exclusively on history and tradition to resolve Second Amendment cases and to completely ignore the government’s asserted public interests in passing gun control laws. Assuming that a person’s conduct is arguably covered by the Second Amendment’s text, the justices said, the government can only prevail in a case challenging a gun reform law if it demonstrates similar laws were enacted in the past.

The court’s exclusive focus on history and tradition in Bruen radically departs from the court's constitutional law jurisprudence. Prior to Bruen, the justices looked at the importance of a constitutional right and compared that to the public policy interests put forward by the government to justify the restriction of that right. New conditions obviously sometimes require new rules to govern the difficult relationship between gun safety and gun rights. The Bruen idea that the court must ignore the reasons why a law was enacted and what public purposes the law was trying to accomplish is absurd, radical and not supported by case law.

In the name of history and tradition, the Roberts court in Bruen adopted a new and radical methodology and then lied about how that approach had been used before.

Justice Thomas argued in Bruen that this myopic tradition-and-history-only method has also been employed by the justices in First Amendment speech cases. But that assertion, like many of the statements made by the Roberts court in huge cases, is simply and demonstrably false.

The court does consult history and tradition at times to determine whether a plaintiff’s allegedly illegal conduct is speech or expression that is protected by the First Amendment. If not -- ie, if the conduct, even if expressive, falls within a category of proscribable speech (like true threats or incitement) -- the plaintiffs lose. If so, however, the court doesn't just stop but balances the importance of the asserted speech right against the public interest the law is trying to achieve using various levels of scrutiny depending on the restriction and speech at issue. What the court has not done in speech cases — or in almost any other constitutional challenge — is completely ignore the asserted rationale for the law at issue.

In the name of history and tradition, the Roberts court in Bruen adopted a new and radical methodology and then lied about how that approach had been used before.

Rejecting rule of law values
This type of misleading decision-making occurs all-too-often in the Roberts court. This blog post, along with a few published law review articles, is the beginning of a book-length project that will show that, regardless of how one feels about the results reached by the Roberts court, its method of deciding cases has been to reject rule of law values like consistency, transparency, and simple truth-telling. The Roberts court will go down in history as one of the most, if not the most, lawless courts in American history.

Editor's note: The following first appeared in Dorf on Law.

Between now and the end of the term, the Supreme Court will issue decisions concerning abortion, guns, administrative law and Trump, Trump, and more Trump. (In addition to the high-profile cases, for example, today the court hears oral argument in a case that tests whether the statute used to try January 6 defendants applies to their conduct.) My guess is that a lot of pain is coming our way as we head towards that great artificial deadline the justices created for themselves known as "June."

As we are in a bit of a holding pattern with tornado-type turbulence surrounding us, I thought I'd provide a bit of, well, let's call it legal levity, as we wait for the court to inflict pain on our people and our country.

Here are 10 fascinating facts about SCOTUS you might not know.

1. MARBURY V. MADISON: THE POLITICAL TURNS PERSONAL AND THE PERSONAL TURNS POLITICAL
Most academics view much of Marbury v. Madison skeptically for many reasons, including that Chief Justice John Marshall likely should have recused himself from the case and because he made up a pretend statute to strike down so nobody would question judicial review.

But what's really interesting is that President Thomas Jefferson (who had denied Marbury his commission to be a judge) and Marshall, both from Virginia and distant cousins, hated each other with a passion. They disagreed politically (Marshall a Federalist and Jefferson an Anti-Federalist) but their animosity was also personal. Jefferson publicly called Marshall a hypocrite while Marshall publicly labeled Jefferson a dishonorable "great lama." Additionally, Marshall married into a wealthy family who had rejected Jefferson (Marshall's wife's mother had declined a marriage proposal from Jefferson).

The foundational case of American constitutional law was as much a personal dispute as a political one. Constitutional law was not off to a great start.

2. THE GREAT LEAK
Most of us lived through the mysterious leaking of the Dobbs decision, but this was not the first leak of a landmark and controversial court decision. As Professor Mark Graber recounts here, President Buchanan was tipped off by Justice Catron about the infamous Dred Scott opinion a few weeks before its scheduled release, and then the president pressured a northern justice to join the opinion along with the southerners on the court. Buchanan and Chief Justice Taney thought the decision might go a long way to settling the slavery issue so they orchestrated the decision for maximum consensus.

Three years later, the Civil War began.

3. DESEGREGATION IS ANOTHER FORM OF SLAVERY?
Most people know that in The Civil Rights Cases of 1883, the most ironically titled decision in Supreme Court history, the justices held that Congress could not end segregation in hotels, restaurants and theaters because Section 5 of the 14th Amendment only allowed Congress to regulate state action and the commerce clause was barely a twinkle in the court’s eye. In other words, the court ended Congress's efforts to stop Jim Crow before they began.

The author of that opinion, Justice Joseph Bradley, wrote this in his personal diary after the case: "depriving white people of the right of choosing their own company would be to introduce another kind of slavery."

Say what now? Think his personal attitude and values affected his decision?

4. SCOTUS AS A NUMBERS GAME
There has been a lot of discussion from the left about adding three or four seats to the court to make it more liberal and to undo the harm caused by Mitch McConnell's norm-breaking manipulation of the court's vacancies. The number has been nine since 1869, but before that the number of justices had been manipulated by Congress and the president over and over for political reasons. For example, the original number was six, but in 1801 President Adams and the Federalist Congress reduced the number to 5 after Jefferson won the 1800 election. The number shifted to six to 10 to seven, finally settling on nine in 1869 where it has been ever since.

But make no mistake, you originalists out there. The tradition of changing the number of justices for political reasons goes back to the very beginning of our history.

I vote we add three libs as soon as possible to get us back to an even number, just like at the beginning.

This idea is not a joke.

5. TORCHING THE COURT
If you think you are angry about the court reversing major decisions on abortion, affirmative action and many other important issues, I can assure you that President Franklin D. Roosevelt was likely even angrier back in 1937. After the justices struck down several major New Deal programs, he said the following on the largest and most important media of the day:

It is perfectly clear, that as Chief Justice Hughes has said: "We are under a Constitution, but the Constitution is what the judges say it is."
The court in addition to the proper use of its judicial functions has improperly set itself up as a third House of the Congress — a super-legislature, as one of the justices has called it -- reading into the Constitution words and implications which are not there, and which were never intended to be there.
We have, therefore, reached the point as a nation where we must take action to save the Constitution from the court and the court from itself. We must find a way to take an appeal from the Supreme Court to the Constitution itself. We want a Supreme Court which will do justice under the Constitution — not over it. In our courts, we want a government of laws and not of men.

If only President Biden ... well, you know.

6. WAS JUSTICE HUGO BLACK UNCONSTITUTIONAL?
Professor Will Baude, who among other things coined the phrase "the shadow docket," wrote a short and persuasive little ditty that Justice Black's appointment to the court was likely unconstitutional. Here is the story.

Article I, Section 6 of the Constitution says: “No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States . . . the Emoluments whereof shall have been encreased during such time." The Senate, while Black was a member, voted to increase the pensions for Supreme Court justices, thus increasing the "emoluments" of that office and thereby rendering Justice Black's appointment a violation of the United States Constitution. Eventually someone sued, challenging the appointment and the court did what it often does when the law unequivocally points in a direction the justices simply do not want to go.

The case was dismissed for lack of standing.

7. CITIZENS UNITED, ELENA KAGAN AND THE QUESTION THAT HAD NO PLAUSIBLE ANSWER
Most liberals and progressives view Citizens United v. FEC as a four-letter word. When it comes to the overbroad rationale of the case, fair enough, but when it comes to the specific result, those critics have it all wrong.

The case involved a prior restraint on political speech. A public-interest, nonprofit corporation was prohibited from distributing a movie about Hillary Clinton a set number of days before the presidential primaries (unless it funded the movie out of segregated funds). This problem was exactly why the First Amendment was adopted in the first place. If you don't believe me, here is the liberal Brennan Center's description of the case: "A conservative nonprofit group called Citizens United challenged campaign finance rules after the FEC stopped it from promoting and airing a film criticizing presidential candidate Hillary Clinton too close to the presidential primaries." What? Exactly.

Justice Kagan argued the case when she was the United States Solicitor General and after the court held it over for re-argument (so that the conservatives could effectively rewrite the questions presented). In the first argument, there was quite a discussion about whether the law that barred the movie too close to an election could also bar political books during the same time period. The government fumbled this question at the first argument, but Kagan said that the government had changed its position and now: “We went back, we considered the matter carefully, and the government's view is that although [the statute] does cover full-length books, that there would be a quite good as-applied challenge to any attempt to apply [the law] in that context. And I should say that the FEC has never applied [the law] in that context. So for 60 years a book has never been at issue."

Listen folks, if the law couldn't be applied to books, then it can't be applied to movies, and the government had to lose. Full stop.

8. ALITO’S AWFULNESS
From 2006-2019, the court had five conservative justices and four liberal ones (with the exception of most of 2016 after Justice Scalia passed away and the aforementioned McConnell acted badly). During that time, Alito the Awful was the only conservative who never sided with the libs in a 5-4 case. Ever.

Chief Justice Roberts and Justice Thomas, not exactly left-leaning fellows, both sided with the libs in important 5-4 cases, such as when Roberts saved the Affordable Care Act and Thomas joined the libs upholding Texas’s decision to ban Confederate flags on license plates. In that case, by the way, Alito compared the Confederate flag to football slogans.

Alito the awful is always awful.

9. "GET OVER IT”
Justice Scalia used to hammer audiences with this command when asked about Bush v. Gore. But maybe just maybe he also used it during his very first oral argument as a justice when, during the middle of it, Justice Powell, a soft-spoken southern gentleman, leaned over to a colleague and whispered, "do you think he knows that the rest of us are here?''

Scalia likely did not care.

10. THE THOMASES
“Do not concede. It takes time for the army who is gathering for his back.”

Ginny Thomas's advice to Trump’s Chief of Staff Mark Meadows in a text message urging him not to accept the 2020 election. She also wrote him the following:

This is a fight of good versus evil. Evil always looks like the victor until the King of Kings triumphs. Do not grow weary in well doing. The fight continues. I have staked my career on it.

Ginny Thomas was in the crowd listening to Trump on January 6, but she did not go to the Capitol.

In related news, Trump’s role in the January 6 attack on the Capitol and election interference is before the court later this month.

In more related news, the Supreme Court has no enforceable ethics or recusal code and there is no indication Thomas will recuse.

And, in related, adjacent news, the Thomases together and individually are a serious threat to the rule of law, the civil rights of many groups and American democracy.

Now we wait until June.

News broke last week that US Supreme Court Justice Clarence Thomas hired as a law clerk a former fired employee of a far-right organization whose text message to a friend included these sentiments, “I HATE BLACK PEOPLE … I hate blacks. End of story.” The background to this entire sordid story can be found here.

That he would go out of his way to help this woman raises challenging questions about Thomas and race that have perplexed legal scholars for decades. Why would a person who grew up in the segregated south issue so many decisions that hurt people of color?

Those trying to answer this question have taken it as a matter of faith that Thomas’s decisions have in fact, and on the ground, hurt racial minorities. But conservatives dispute that premise, so it is important to establish how truly awful Thomas’s jurisprudence has been for non-white Americans. Why he has engaged in this path of racial destruction is less important than assessing the damage his decisions and his rhetoric have caused.

Thomas has called on the court to overturn one of its landmark decisions, Gideon v. Wainwright, which gave people accused of crimes a right to a government-paid attorney if they can’t afford one.

Thomas would leave people accused of serious crimes, even those subject to the death penalty or life imprisonment, to their own devices without legal representation. Such a shift would disproportionately hurt racial minorities.

Thomas believes that if police engage in constitutional violations leading to their possession of unlawful evidence, or if the police illegally coerce a confession, the exclusionary rule (which, absent an exception, keeps such evidence out of court) does not apply to the states. If the full court were to adopt this position, abusive police behavior against minorities, which happens regularly in our criminal justice system, would get worse and there would be no effective remedy against such practices.

Over the course of four decades, Thomas has voted to strike down every affirmative action program he has ever faced – no exceptions. As others have pointed out, the irony of this aspect of his work is that Thomas was most likely accepted at Yale Law School in part because of affirmative action.

Throughout these cases, Thomas argued that Black students at elite schools often fail because they “can’t compete in the cauldron of competition.” There is no reliable data underlying that conclusion, but there is, as Justice O’Connor once pointed out, strong evidence that elite colleges and law schools produce a disproportionate number of America’s political, economic and legal elites.

Without substantial access to these schools, racial minorities will have a much harder time becoming successful leaders. Would Thomas even be on the Supreme Court if he had attended a second-tier law school instead of Yale? Given that eight of the nine current justices went to Harvard or Yale, and the ninth went to Notre Dame, the answer is almost certainly no.

Reasonable people can disagree over the value of affirmative action to minorities, but Thomas’s extreme opposition based mostly on policy, not legal grounds, coupled with his pernicious, repeated, and unsupported rhetoric that Black students cannot compete at elite schools makes this aspect of Thomas’ agenda quite disturbing.

In 2013, the Supreme Court gutted the Voting Rights Act (after it was overwhelmingly renewed by Congress and signed by President George W. Bush) by saying Congress had to re-enact a formula determining which states had to pre-clear election law changes.

The four conservatives on the court other than Thomas were content to just tell Congress it needed to update the law. Thomas would have gone much further and would have held that Congress could not constitutionally enact a new law with a different formula to determine which states were the most egregious offenders of voting rights. He also has voted to unduly limit the reach of a different section of the Voting Rights Act, making it harder for plaintiffs to sue states for racial discrimination in election procedures.

Thomas’s rulings on voting rights have hurt people of color to a considerable degree, and he would go further than any other justice in taking power away from Congress to ensure that racial minorities can fully participate in our political process. These votes seem much more aligned with the Republican Party’s desire to make it harder for people of color to vote than any reasonable interpretation of the United States Constitution.

There is an aspect of equal protection clause doctrine that prohibits states from conditioning the exercise of fundamental rights on payments that the poor cannot afford. For example, if a state provides appellate review for criminal cases, as all fifty states do, indigents have a right to appeal without paying the costs. This rule also applies to child termination cases and other government-required costs, such as mandatory fees to obtain a divorce. The central ideal of these cases is that the government should not be allowed to condition participation in important legal proceedings on the ability of people to pay for those services.

Thomas disagrees with all of these cases because in his view the Constitution does not require the government to waive fees for important services when people are too poor to pay those fees. His complete indifference to the plight of the indigent, and thus disproportionately racial minorities, simply cannot be denied.

Thomas was also the only justice in the landmark Citizens United decision to rail against laws requiring corporations to disclose who makes contributions to their political spending. One cannot help but wonder whether this aggressive stance against disclosure is based in part on Thomas’s experiences being wined and dined by wealthy billionaires who, of course, fight disclosure tooth and nail. In any event, Thomas’s desire to strike down disclosure laws, if he found four other votes, would help the rich and powerful (and mostly white) avoid responsibility for their political spending decisions.

Thomas has on rare occasion come down on the side of people of color, such as when he voted with the liberals to allow Texas to refuse to issue Confederate flag-themed specialty license plates. But such cases are extremely difficult to find and are lonely exceptions to the rule.

Thomas’s legal positions are extreme and often solitary.

Why he is adamantly opposed to addressing society’s race and poverty issues is less important than the fact that his record on these issues is so much worse than even the other far-right conservatives on the Court. Through his votes and opinions on affirmative action, voting rights, criminal procedure and other important constitutional law issues, Thomas has done enormous damage to laudable efforts by lawmakers and others to achieve a less racist and more just America.