Normally, I would not spend much time or effort responding to the dissenting opinion on the Supreme Court, but Clarence Thomas’s opinion on Kim Davis written on 10/4/2020 had a statement so nonsensical it had to be gone after.
For those who don’t remember, Kim Davis was a Kentucky clerk who refused to sign a marriage license for a gay couple shortly after the Supreme Court legalized gay marriage nationwide in 2015. She cared about the scantily of marriage, so much so she previously engaged in it four separate times. Long story short, she lost re-election in 2018 to the gay man she denied a marriage license to in the first place, which is hilarious. And the fact that she insisted on taking this case to the Supreme Court even after the people of Kentucky grew sick of her is equal parts sad, funny, and kind of inspiring — I wish I had the dedication Kim Davis has when it comes to defending her right to be a bigoted government official.
Naturally, the Supreme Court, the people who legalized gay marriage nationwide in the first place, ruled against her. If she wanted to be in a position where she would have the power to influence marriage laws, clerk in a Kentucky county is simply not that place. In fact, I would go so far as to argue that local clerk in Kentucky is the worst place to be if you want to have influence over marriage laws. Call me old fashion if you like, but I tend to believe that if you want to influence the laws of your state, you should be a state legislator.
With that said, in his descent, Justice Thomas made one of the most nonsensical statements in regards to how the United States operates:
This petition implicates important questions about the scope of our decision in Obergefell, but it does not cleanly present them. For that reason, I concur in the denial of certiorari. Nevertheless, this petition provides a stark reminder of the consequences of Obergefell. By choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, and by doing so undemocratically, the Court has created a problem that only it can fix. Until then, Obergefell will continue to have “ruinous consequences for religious liberty.”
“And by doing so undemocratically?” Correct me if I’m wrong, but isn’t Thomas suppose to be some kind of expert on the founding fathers and their vision of America? Because, if that is the case, it seems odd Thomas has never figured out just why he was not elected in the first place.
Thomas is right in that the Supreme Court decides things in an undemocratic manner, Supreme Court Justices are appointed by the President and confirmed by Senate — one of which is not directly elected, the other was not directly elected until just over a century ago.
You know, for a guy who’s suppose to be this giant originalist, it’s odd he has never heard of these quotes from our founding fathers:
Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There never was a democracy yet that did not commit suicide. It is in vain to say that democracy is less vain, less proud, less selfish, less ambitious, or less avaricious than aristocracy or monarchy. It is not true, in fact, and nowhere appears in history. Those passions are the same in all men, under all forms of simple government, and when unchecked, produce the same effects of fraud, violence, and cruelty. — John Adams
We are now forming a republican government. Real liberty is neither found in despotism or the extremes of democracy, but in moderate governments. — Alexander Hamilton
It has been observed that a pure democracy if it were practicable would be the most perfect government. Experience has proved that no position is more false than this. The ancient democracies in which the people themselves deliberated never possessed one good feature of government. Their very character was tyranny; their figure deformity. — Alexander Hamilton
A pure democracy can admit no cure for the mischiefs of faction. A common passion or interest will be felt by a majority, and there is nothing to check the inducements to sacrifice the weaker party. Hence it is, that democracies have ever been found incompatible with personal security or the rights of property; and have, in general, been as short in their lives as they have been violent in their deaths. — James Madison
Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths. Theoretic politicians, who have patronized this species of government, have erroneously supposed that by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions. — James Madison
In England, at this day, if elections were open to all classes of people, the property of landed proprietors would be insecure. An agrarian law would soon take place. If these observations be just, our government ought to secure the permanent interests of the country against innovation. Landholders ought to have a share in the government, to support these invaluable interests, and to balance and check the other. They ought to be so constituted as to protect the minority of the opulent against the majority. The senate, therefore, ought to be this body; and to answer these purposes, they ought to have permanency and stability. — James Madison
Our founding fathers did not believe in Democracy, they believed in a representative republic. Back at the time of the founding, people who did not own property could not vote, and Senators were elected by state legislators and not by the people. Thomas should understand we still have some aspects of this remaining, considering our most recent President lost the popular vote and he, like all Supreme Court Justices, has never had to face an election. Would Thomas support democratizing the Supreme Court or abolishing the Electoral College? No, instead Thomas is only mentioning democracy as a reason to be against gay marriage.
While Ben Franklin never said this, one of the most popular quotes attributed to him is:
Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote.
It’s odd because I can think of no better example of this than laws against gay marriage. Many wolves (the majority of the population is not LGBT) voting rather a much smaller amount of sheep can have the same rights as them.
Yes, gay marriage was forced onto the states, that’s because federal law overturns state laws. Would Justice Thomas also want Strauder v. West Virginia, which decided that you can not exclude someone from a jury based on race, overturned for the same reason? How about Smith v. Allwright? Morgan v. Virginia? Herandez v. Texas? Brown v. Board Of Education? Bolling v. Shape? Gomilion v. Lightfoot? Boynton v. Virginia? Loving v. Virginia? I would assume not.
Those on the Supreme Court exist not to make democratic rulings, but rulings that further promote the rights of the people. This is why the Supreme Court is not elected, as many controversial Supreme Court decisions, on both the left and the right, would not have happened if the bench had to worry about being re-elected.
And look at that, I wrote this entire article without mentioning how Thomas voted in Bush v. Gore — wait, I just ruined it, didn’t I?