“The events of earlier this week are one of the symptoms of this,” Thomas said. He added that “you cannot have a free society” without stable institutions.
His comments were in front of an audience of mostly judges and lawyers at the 11th Atlanta District Judicial Conference. Chief Justice John Roberts addressed the same conference on Thursday, calling the leak “absolutely appalling.”
Thomas’ comments echoed a speech last fall, when the judiciary condemned attempts to “manipulate” institutions. At the time, he seemed to be nodding to progressive attempts to add more members to the Supreme Court to dilute the conservative majority. “I think we have to be careful to destroy our institutions because they don’t give us what we want when we want it,” he said at the time.
On Friday, Thomas reiterated that he believes that Supreme Court judges are obliged to look at the established precedent in a new way and should not be bound by the doctrine called “stare decisis”. The legal principle translates as “stand behind what has been decided” and aims to strengthen the stability of the law. Thomas has long been a critic of the strict reading of the doctrine.
“We use star decisis as a mantra when we don’t want to think,” Thomas said Friday. But he noted that unlike the lower courts, the Supreme Court is “the end of the line.” If the judges “don’t watch it, who does?” he asked.
He has expressed similar sentiments before, but the conversation came the same week when Politico received the draft opinion, which aims to set aside a nearly 50-year precedent.
Although not final, the February draft reflects that a majority of the court – probably including Thomas – voted initially to overturn the landmark opinion that legalizes abortion across the country. Thomas is clear that he thinks the 1973 opinion was wrong. In June 2020, for example, he called the decision “grossly wrong”. The 73-year-old judge has been in the spotlight lately because he spent a week in hospital in March for what the court called an infection. Around the same time, it was revealed that a House of Representatives committee investigating the January 6, 2021 Capitol riot in the United States has more than two dozen text messages, 29 in all, among former Trump White House chief of staff Mark Meadows and Virginia “Ginny” Thomas, the wife of Judge Thomas.
The existence of the texts infuriated critics, who said justice should be withdrawn from any future cases involving the work of the elected committee and the January 6 uprising. He was the only public dissident in January when a court authorized the release of several Trump White House documents to House investigators, although Ginny Thomas’s texts were not involved in the dispute.
The text messages were made between early November 2020 and mid-January 2021. Ginny Thomas recently revealed that she attended the Trump rally before the January 6 attack, but said she “played no role” in planning of the events of that day.
Federal law requires judges to withdraw from proceedings in which their “impartiality may reasonably be called into question.” Another section of the law requires disqualification if the spouse has an “interest” that may be significantly affected by the outcome of the proceedings.
On Friday, Thomas – who was interviewed by a former official – was not asked about ethical disputes.
And in front of a friendly crowd, he was not pressured directly for the unprecedented breach of protocol that occurred when the draft opinion was unveiled on Monday.
Although the leak stunned members of the court, Thomas seemed calm and optimistic on Friday when he was greeted with applause. The moderator started the conversation by asking about his health. “Well, I’m upright,” Thomas said, then burst out laughing.
He touched on a wide variety of topics, including his “bias” in hiring officials from what he called “modest circumstances.” He noted that most other judges hire Ivy League staff, but said those who do not come from elite law schools carry “wisdom” and “common sense, hard work and decency.” He also said that writing opinions should be just for the sake of “getting better”.
“You don’t need to make the work product inaccessible,” he said.
Thomas called Judge Stephen Brier’s impending retirement “brutal.”
“It’s really hard to see him leave,” he said.
This story has been updated with additional details.
Ryan Nobles, Annie Grayer, Zachary Cohen and CNN’s Jamie Gangel contributed to this report.
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