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Clarence Thomas says abortion draft decision leak has modified the Supreme Court

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Associate Supreme Court Justice Clarence Thomas speaks on the Heritage Foundation on October 21, 2021 in Washington, DC.

Drew Angerer | Getty Images

Justice Clarence Thomas says the Supreme Court has been modified by the shocking leak of a draft opinion earlier this month. The opinion suggests the court is poised to overturn the suitable to an abortion recognized nearly 50 years ago in Roe v. Wade.

The conservative Thomas, who joined the court in 1991 and has long called for Roe v. Wade to be overturned, described the leak as an unthinkable breach of trust.

“While you lose that trust, especially within the institution that I’m in, it changes the institution fundamentally. You start to look over your shoulder. It’s like form of an infidelity you can explain it, but you’ll be able to’t undo it,” he said while speaking at a conference Friday evening in Dallas.

The court has said the draft doesn’t represent the ultimate position of any of the court’s members, and Chief Justice John Roberts has ordered an investigation into the leak.

Thomas, a nominee of President George H.W. Bush, said it was beyond “anyone’s imagination” before the May 2 leak of the opinion to Politico that even a line of a draft opinion could be released prematurely, much less a whole draft that runs nearly 100 pages. Politico has also reported that along with Thomas, conservative justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett had voted with the draft opinion’s writer, Samuel Alito, to overrule Roe v. Wade and a 1992 decision, Planned Parenthood v. Casey, that affirmed Roe’s finding of a constitutional right to abortion.

Thomas said that previously, “if someone said that one line of 1 opinion” could be leaked, the response would have been: “Oh, that is unattainable. Nobody would ever try this.”

“Now that trust or that belief is gone ceaselessly,” Thomas said on the Old Parkland Conference, which describes itself as a conference “to debate alternative proven approaches to tackling the challenges facing Black Americans today.”

Thomas also said at one point: “I do think that what happened on the court is tremendously bad…I ponder how long we will have these institutions at the speed we’re undermining them.”

Thomas also touched in passing on the protests by liberals at conservative justices’ homes in Maryland and Virginia that followed the draft opinion’s release. Thomas argued that conservatives have never acted that way.

“You’ll never visit Supreme Court justices’ houses when things didn’t go our way. We didn’t throw temper tantrums. I believe it’s … incumbent on us to at all times act appropriately and never to repay tit for tat,” he said.

Protests on the Supreme Court and across the nation are also expected Saturday.

Thomas was speaking before an audience as a part of a conversation with John Yoo, who’s now a Berkeley Law professor but worked for Thomas for a yr within the early Nineteen Nineties as a law clerk.

Each justice generally has 4 law clerks every yr and the present group of law clerks has been a spotlight of speculation as a possible source of the draft opinion’s leak. They’re certainly one of a number of groups together with the justices and a few administrative staff that has access to draft opinions.

Thomas also answered a number of questions from the audience, including one from a person who asked concerning the friendships between liberal and conservative justices on the court, similar to a well known friendship between the late liberal Justice Ruth Bader Ginsburg and the late conservative Justice Antonin Scalia. “How can we foster that very same variety of relationship inside Congress and throughout the general population?” the person asked.

“Well, I’m just anxious about keeping it on the court now,” Thomas responded. He went on to talk in glowing terms about former colleagues. “This will not be the court of that era,” he said.

Despite his comments, Thomas seemed in good spirits — laughing heartily at times. Yoo, who is thought for writing the so-called “torture memos” that the George W. Bush administration used to justify using “enhanced interrogation” techniques after the Sept. 11 terror attacks, said at one point that he had taken pictures of notes Thomas had taken throughout the conference.

“You are going to leak them?” Thomas asked, laughing.

Yoo responded: “Well, I do know where to go…Politico will publish anything I give them now.”

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