Latest SCOTUS Rumor: Clarence Thomas Might Resign, Or Maybe Not

Clarence Thomas is the latest Supreme Court Justice to be the subject of retirement rumors. You should treat these rumors skeptically.

Clarence Thomas

Conservatives went into panic mode, and liberals got excited, when the Washington Examiner posted over the weekend that Supreme Court Justice Clarence Thomas may resign at some point after the election. As with previous rumors about other Justices, though, these rumors should be taken with a huge grain of salt:

Justice Clarence Thomas, a reliable conservative vote on the Supreme Court, is mulling retirement after the presidential election, according to court watchers.

Thomas, appointed by former President George H.W. Bush and approved by the Senate after a bitter confirmation, has been considering retirement for a while and never planned to stay until he died, they said. He likes to spend summers in his RV with his wife.

His retirement would have a substantial impact on control of the court. The next president is expected to immediately replace the seat opened by the death of conservative Justice Antonin Scalia, providing a one-vote edge in the court that is currently divided 4-4.

Should Thomas leave, that slight majority would continue if Donald Trump becomes president. If it’s Hillary Clinton, then she would get the chance to flip two Republican seats, giving the liberals a 6-3 majority.

In reality, there is far less news here than the headline, or the reaction from some quarters would seem to indicate. For one thing, it’s something of a tautology that Thomas will be leaving the Court at some point in the future. For one thing, unless he’s discovered the secret to eternal life and not told any of us about it, Thomas isn’t going to live forever. He’s  67 now, and could conceivably stay on the Court for another ten to fifteen years if his health allows it and he wants to keep his position, but eventually he’s going to leave the bench and some President is going to get to pick his successor. If that President ends up being a Democrat, as it very well could be for the seat vacated by his fellow Associate Justice and close friend Antonin Scalia, then it will further contribute to what could potentially be a fundamental shift in the direction of the Supreme Court that could last well into the middle of the 21st Century and beyond. The fact that something “could” happen, though, doesn’t mean that it will, and as with previous rumors about Supreme Court retirements, the truth in Washington is that rumors like this tend to end up having little basis in reality.

One of the best examples of rumor mongering about Supreme Court retirements in recent years has focused on a Justice at the opposite end of the spectrum from Thomas, Justice Ruth Bader Ginsburg. Consistently for the past six years or so, Ginsburg has been the subject of rumors of imminent retirement that ended up getting shot down. In part, the Ginsburg rumors were based on the fact that she is the oldest Justice on the Court, and has dealt with a number of health issues in recent years, but there also seemed to be more venal motivations for some of the rumors as well. More than once, liberal pundits have tried to essentially guilt trip Ginsburg into retiring so that President Obama could pick her successor. It’s an absurd and selfish demand, of course, and it has always been either ignored by the Justice or responded to with a rather emphatic “no.” In Thomas’s case, what we’re looking at appears to be nothing by pure speculation by reporter and source that has no basis in reality. It’s possible, of course, that the death of the person who was clearly Thomas’s closest friend on the Court has caused the Justice to reflect on his own future and how much longer he wants to spend his time on the Court. For Justice Scalia, as for Justice Ginsburg, the answer was obvious. Both of them long exhibited a love for the law and for the role they were playing on the Court that leaving prematurely was out of the question unless it became medically necessary. Justice Thomas’s enthusiasm has always seemed much more subdued, to the point where it’s hard to see him staying until he was in his 80s unless he felt there was some obligation to do so. So, yes, I suppose it’s possible that Thomas is think about retirement, just as anyone who hits his age bracket is likely to do, until we hear an official announcement, though, stories like this should viewed incredibly suspiciously. In any case, such a retirement, if it does come, is more than a year away at the earliest, and probably much beyond that absent an emergency or something tragic as happened with Justice Scalia.

None of this is to say that the next several years don’t have the potential to be incredibly active when it comes to Supreme Court retirements. One suspects, for example, that Justice Ginsburg will retire if Hillary Clinton is elected President, thus giving Hillary the chance to appointment a replacement for a Justice that her husband had appointed. Similarly, Justice Stephen Breyer, who will turn 78 over the upcoming summer recess, may see the victory of a Democrat as an opportunity to step aside as well, although likely not in the same year as Ginsburg. On the other side of the aisle, Justice Kennedy will turn 78 over the recess and may see the victory of a Republican President as the same sort of opportunity, although one wonders whether Kennedy would be comfortable with the idea of a President Donald Trump appointing his replacement. Given his status as a “swing” vote on the Court even after the death of Justice Scalia, replacing Kennedy would have as big an impact on the direction of the Court as replacing Scalia will have if it ends up being done by a Democratic President. A Democrat replacing Ginsburg and/or Breyer, meanwhile, would have little real impact on the Court’s direction. Combined with whatever may happen to the seat formerly held by Justice Scalia and President Obama’s appointment of Merrick Garland to fill that vacancy, though, what’s clear is that we may be about to enter into a period of tremendous change at the nation’s highest court.

Update: Thomas’s wife has a response on Facebook:

So, there you have it.

FILED UNDER: Campaign 2016, Law and the Courts, US Politics,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. C. Clavin says:
  2. An Interested Party says:

    Well of course his wife doesn’t want him to retire…after all, she might be involved in some more cases that come before the Supreme Court…

  3. Andrew says:

    Well of course his wife doesn’t want him to retire…after all, she might be involved in some more cases that come before the Supreme Court…

    On that note. A little food for thought for any of our Thomas supporters/fans/loved ones.

    Judicial disqualification:
    https://en.wikipedia.org/wiki/Judicial_disqualification.

    Judicial disqualification, also referred to as recusal, refers to the act of abstaining from participation in an official action such as a legal proceeding due to a conflict of interest of the presiding court official or administrative officer. Applicable statutes or canons of ethics may provide standards for recusal in a given proceeding or matter. Providing that the judge or presiding officer must be free from disabling conflicts of interest makes the fairness of the proceedings less likely to be questioned.

  4. gVOR08 says:

    @Andrew: Doesn’t seem to apply to SCOTUS for the simple reason that, short of impeachment, there’s no one who can enforce it.

  5. stonetools says:

    The universe doesn’t like us liberals that much….

    Thomas will hold out till the next Republican President is elected. Count on it.

    Drives home once again that this election is key to the future of SCOTUS- both for President and Senate.

  6. Tony W says:

    @stonetools: I can easily imagine that if Trump is elected, he’d nominate himself to the Supreme Court – and insist on holding both jobs simultaneously. After all, he’s the best judge – the best!

  7. Andrew says:

    @gVOR08:

    True. It would be a matter of Ethics.

    On that note. For our Thomas supporters…

    Ethics
    https://en.wikipedia.org/wiki/Ethics

    Ethics or moral philosophy is the branch of philosophy that involves systematizing, defending, and recommending concepts of right and wrong conduct.[1] The term ethics derives from the Ancient Greek word ἠθικός ethikos, which is derived from the word ἦθος ethos (habit, “custom”). The branch of philosophy axiology comprises the sub-branches of ethics and aesthetics, each concerned with values.[2]

    Obviously Thomas is not Muslim or Hispanic, though…

  8. Franklin says:

    Ha, like it matters if he retires or not. You think the Senate is going to allow *two* confirmations during the next term? If they even get around to doing one, they’ll then claim the American people deserve a say on the next one, and put it off another four years.

    /this is assuming a Clinton victory, which is not a foregone conclusion

  9. Raoul says:

    Justice Thomas has shown that he will do whatever he wants to do and that’s fine. Unlike other liberals, I think Justice Thomas has brought an interesting jurisprudence to the court, mind you one that I disagree with. Truth be told he has articulated “original intent” with more precision than any of his colleagues and it is because of this one may offer clearer alternative to the ‘theory.’ Scalia was a conservative political hack whose views were remarkably inconsistent and it is a disservice to compare them both as clones.

  10. Tony W says:

    @Franklin:

    this is assuming a Clinton victory, which is not a foregone conclusion

    Nor is a Republican Senate.

  11. stonetools says:

    @Tony W: 21

    Hey lighten up guys. According to the predictive markets, the odds are pretty good on a Clinton win and a Democratic Senate majority come November. House is out of reach, though-for now.
    With five more months of Trump, even a Democratic House might be possible.

  12. Rocco delafield says:

    It was rabble rousing troll bait. Meant to get the reaction it did. Somebody’s whispering campaign to incite the great unwashed masses of mendacity to hop skip to the ballot box. Nothing to see here. As Rosanne Rosanna Danna would say…..”nevermind”

  13. HarvardLaw92 says:

    They’ll have to drag him kicking & screaming from the building or wheel him out in a body bag. There’s no way he resigns – none.

  14. edmondo says:

    Ever since Scalia stopped showing up for work, poor Clarence isn’t sure how to vote

  15. An Interested Party says:

    You think the Senate is going to allow *two* confirmations during the next term?

    With a Democrat in the White House and at least 50 Democratic senators (with a Democratic vice-president as the tie-breaker), why not? To hell with the filibuster, get rid of it…

  16. Barry says:

    Doug: “It’s an absurd and selfish demand, of course, and it has always been either ignored by the Justice or responded to with a rather emphatic “no.””

    No, it’s neither absurd nor selfish.

  17. al-Alameda says:

    Given Justice Thomas’s willful failure to report, on annually required financial disclosure forms for a few years, his wife’s six-figure income at the Heritage Foundation, he probably should have been removed from the Supreme Court a few years ago.

    Conservatives need not worry, Thomas was so aggrieved by the treatment he received during his congressional hearings on his nomination to the Court, that he will never voluntarily leave the Court, if only for the reason that it would annoy liberals in perpetuity.