In a C-SPAN Interview in April, 2013, Supreme Court Justice Clarence Thomas was asked pointedly his thoughts about President Obama. The characteristically terse, and guarded Thomas simply said, “I shook hands with him at the inauguration to be polite but I’ve had no in depth conversation.” He did not elaborate. But there was no need. He made it clear that any interaction with Obama was solely “to be polite.” Thomas along with the four other justices has virtually turned the number 5 to 4 into a fine art. That’s the now reflexive vote of the five high court judges against any and every Obama administration position, initiative, or piece of legislation that’s challenged and that winds up before the court.
The much talked about recent Hobby Lobby ruling in which the five held that privately-held corporations can refuse on religious grounds to cover the cost of contraceptives for its employees was typical. It’s a blow to Obama’s Affordable Care Act, gives more power to corporations, and opens the floodgates wide to using religion to torpedo anything corporations don’t like. The ruling is the standard template for the five justices’ war on Obama. The five has ruled thirteen times that Obama has allegedly badly abused his constitutional authority in decisions, appointments, and court appeals. Their rulings have little to do with executive abuse since many of the cases were routine appeals. They simply undergird the GOP’s shrill war whoop that Obama is a serial constitutional usurper.
This was just a warm up drill in the court’s war on Obama. The heavy duty stuff is the court majority’s rulings in the big ticket issues of voting rights, affirmative action, corporate and property rights, and union and environmental protections. The court has ruled against him in more than 60 percent of these cases. In more than a dozen cases in the last two years the vote against him was 5 to 4. Past presidents have generally gotten most of what they want from the high court. According to Adam Winkler, UCLA constitutional law professor, on average they presidents have won about 70 percent of the cases the court’s decided that their administration backed. Obama is not even close to that number.
Thomas tipped his and the other four’s hand when he attributed the inauguration hand shake solely to politeness. But he and the other four have been anything but polite in their determined assault on Obama. Their assault has had little to do with the law, and everything to do with politics and ideology. Their decisions put bluntly against him are blatant partisan political pandering. Thomas and the other four justices were appointed by Republican presidents. The other four justices that almost always back the Obama administration in their votes on court cases were appointed by him or other Democratic presidents.
It’s much more, though, than a case of the justices voting their party labels. In decades past, many Democratic and Republican appointed justices have scrapped party loyalties and based their legal decisions solely on the merit of the law, constitutional principles and the public good. But Thomas and the other four are judicial horses of a different color. The tip-off that they’d likely vote their ideology rather than the law came from George W. Bush. On the presidential campaign trail in 2000, Bush was asked if elected what kind of judge he’d look for and nominate. He didn’t hesitate. He pledged to appoint “strict constructionists” to the court and specifically named Thomas, Antonin Scalia and William Rehnquist as the judges that perfectly fit that description. By then the three had already carved out a hard line niche as three of the most reflexive, knee jerk, reactionary jurists to grace the court in decades. Their votes to torpedo, water down, eviscerate or erode rights on all issues from abortion to civil rights were so predictable they could have been mailed in.
Thomas has taken that even further and has been the court’s first openly public recluse by refusing to utter a peep during any of the oral arguments before the court. But then there’s not much need since his anti-Obama votes are already guaranteed. The rare times that Obama has won victories have been much less than met the eye. In the court’s ruling that invalidated the Defense of Marriage Act and in declining to rule on the California’s Proposition 8 voter approved ban on gay marriage, the rulings were on the narrowest of grounds and in both cases there was no mention of the constitutionality or not of same sex marriage. Even then the wins were narrow. Thomas and three of the reflexive anti-Obama conservatives voted to uphold DOMA. He and two of the others voted in the minority to uphold Prop 8.
The Supreme Court ended the 2013-2014 session as it has nearly every other session since Obama took office in 2009 by taking every opportunity to escalate its war on him. It’s a war the court will wage without end against him and any other moderate Democrat that sits in the White House.
Earl Ofari Hutchinson is an author and political analyst. He is a frequent political commentator on MSNBC and a weekly co-host of the Al Sharpton Show on American Urban Radio Network. He is the author of How Obama Governed: The Year of Crisis and Challenge. He is an associate editor of New America Media. He is the host of the weekly Hutchinson Report on KPFK-Radio and the Pacifica Network.
