Here Are 5 of Clarence Thomas’ Worst Decisions — And Proof Judge Brett Kavanaugh Is Cut from the Same Cloth

Clarence Thomas and Brett Kavanaugh don't just share the same rocky road to Supreme Court confirmation.

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When Justice Clarence Thomas replaced Thurgood Marshall on the U.S. Supreme Court in 1991, it was obvious that philosophically, the two of them were diametrically opposed. Marshall, appointed by President Lyndon B. Johnson and sworn in by Chief Justice Earl Warren in 1967, was the High Court’s first African-American justice—and he was a liberal. But Thomas, who is African-American as well and was appointed by President George H.W. Bush, has been one of the Court’s most far-right justices. And if Judge Brett Kavanaugh is confirmed by the U.S. Senate, the 70-year-old Thomas might soon be joined on the High Court by someone who is equally extreme.

Known for his opposition to abortion and gay rights, Thomas is a severe social conservative—although when Anita Hill testified before the Senate, in 1991, that Thomas had sexually harassed her and had a major appetite for hardcore porn, Thomas critics were quick to assert that he didn’t practice what he preached. And in 2018, memories of Thomas’ Senate confirmation hearings have come flooding back, with Palo Alto University psychology professor Christine Blasey Ford and 53-year-old Deborah Ramirez alleging that Kavanaugh committed acts of sexual abuse back in the 1980s. 

Here are five of Thomas’ worst rulings, all of them compatible with Kavanaugh’s judicial philosophy.

1. Lawrence v. Texas, 2003

If Kavanaugh is confirmed to the Supreme Court, he will be replacing the retired Anthony Kennedy—a right-wing 1987 Ronald Reagan appointee with libertarian leanings. Kennedy was fiscally conservative but socially liberal, and Kavanaugh’s confirmation would be as much of a game-changer for the High Court as Thomas’ back in 1981. Socially, Kavanaugh is much closer to Thomas and the late Antonin Scalia than he is to Kennedy. And the 2003 ruling in Lawrence v. Texas is a perfect example of why Thomas has been terrible for the Court.

Kennedy wrote the majority opinion in that case, striking down a Texas sodomy law on a right-to-privacy basis—and Thomas was a dissenter along with Scalia and Chief Justice William Rehnquist. Lawrence v. Texas was a major victory for gay rights that Kennedy supported and Thomas opposed, and Kavanaugh—given the “strict constructionist” or “originalist” views he shares with Thomas—would have no doubt sided with Thomas over Kennedy in that ruling.

2. Obergefell v. Hodges, 2015

Another major victory for gay rights came in 2015, when Kennedy wrote the majority opinion in Obergefell v. Hodges—legalizing, in effect, same-sex marriage in all 50 states. Thomas was a dissenter in that 5-4 ruling, along with Scalia, Samuel Alito and Chief Justice John Roberts. And the 5-4 part is crucial: had Kavanaugh been on the Court instead of Kennedy in 2015, he would have no doubt sided with Thomas rather than Kennedy.

3. Citizens United v. the Federal Election Commission, 2010

While liberals and progressives have praised Kennedy for authoring the majority opinions in Lawrence v. Texas and Obergefell v. Hodges, they were furious with him for his majority opinion in Citizens United v. the Federal Election Commission—a horrible decision that removed all limits on how much money super PACs and mega-corporations can pour into elections. Thomas and Kennedy were mostly in agreement on Citizens United, and given Kavanaugh’s corporatist leanings, it is most unlikely that he would want to overturn that decision. 

4. King v. Burwell, 2015

In 2015, the Supreme Court’s ruling in King v. Burwell upheld the constitutionality of most of the Affordable Care Act of 2010, a.k.a. Obamacare—and Thomas, not surprisingly, was a dissenter along with Scalia and Alito. In other words, Thomas has no problem with insurance companies denying health insurance to small business owners because they had the misfortune of being born with Type 1 diabetes or developing cancer. Kennedy, it turned out, voted to uphold most of the ACA. But Kavanaugh was a dissenter in the 2011 appellate court case Seven-Sky v. Holder, which upheld Obamacare.

5. Whole Woman’s Health v. Hellerstedt (2016)

Another decision where Thomas parted company with Kennedy was Whole Woman’s Health v. Hellerstedt. In 2016, the High Court ruled, 5-3, that the State of Texas could not restrict abortion services in a way that placed an unreasonable burden on women seeking them. Pro-choice Kennedy was part of the majority opinion, while Thomas was a dissenter along with Alito and Roberts. And Kavanaugh, given his strict constructionist philosophy and anti-abortion views, would have likely sided with Thomas on a states’-rights basis. 

 

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Alex Henderson is a news writer at AlterNet and veteran political journalist. His work has also appeared in Salon, Raw Story, Truthdig, National Memo, Philadelphia Weekly, Democratic Underground, L.A. Weekly, MintPress News and many other publications. Follow him on Twitter @alexvhenderson.