How Clarence Thomas Stands to Benefit From a Kamala Harris Victory
As the U.S. Supreme Court resumes Tuesday, and with the nation now on the home straight of the 2024 U.S. presidential election, Kamala Harris is not the only person who stands to make history.
At stake for Clarence Thomas is a place in the annals of the Supreme Court of the United States.
Thomas, appointed to the court by former President George H. W. Bush in 1991, will become the longest serving justice in history should he hold out for another another four years.
He finds himself in the perverse position of being a conservative justice who stands to benefit if the progressive candidate wins.
Already the 10th longest serving justice, with every passing day he edges further up a list of legal greats, towards the very upper echelons of the pantheon of U.S. legal legends .
Just by hanging in for another year alone, Thomas's length of service would surpass that of Justice Joseph Story - a justice famed for his three-volume treatise Commentaries on the Constitution of the United States who towered over the 19th century legal word.
However should Trump succeed , Thomas could find himself under intolerable pressure to quit the bench and make way for younger justices who can serve for another 30 years.
Conversely, if Harris wins, he will find himself under pressure to stay on the bench to prevent her from appointing a more liberal successor.
In the past few decades, few justices have retired while the opposite party was in the White House.
"Thomas is more likely to retire if Trump wins, to allow for a conservative justice to replace him. He's only 76, so he may wait until 2028 if Harris wins. Of the three liberal justices, Sotomayor is the oldest at age 70, so she's the most likely to retire under a Harris administration," former federal prosecutor Neama Rahmani told Newsweek.
When did Clarence Thomas join the Supreme Court?
Thomas, 76, has served on the nation's highest court for nearly 33 years and has established a reputation for being a staunch conservative, becoming a target of criticism among Democrats and a hero among Republicans.
He faced controversy as soon as he was appointed: during his confirmation hearing in 1991, Anita Hill , a lawyer, accused him of sexual harassment when he was her supervisor at the U.S. Department of Education.
The hearing, led by President Joe Biden, at the time a senator, continues to elicit criticism of Thomas decades later.
He has maintained his innocence, denying Hill's allegations and he famously referred to the hearing as a "high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas."
In recent years he has faced questions about his financial independence following reports that he accepted and did not disclose trips from GOP mega-donor Harlan Crow, sparking calls for judicial reform.
Thomas has said he followed disclosing requirements at the time, but the controversy sparked calls for stronger reporting guidelines and ethics rules for justices.
According to Rahmani, it is for this reason that Thomas potentially faces pressure to step down whoever wins the White house .
"He and his wife have been the subject of increased scrutiny because of dealings with wealthy friends and conservative organizations, and the pressure for Thomas to recuse himself will only increase with a Democratic president," he said.
Who is the longest serving Supreme Court Justice in history?
Should Harris prevail, Thomas will have an opportunity to take one for the team and perhaps consolidate his reputation by retaining the conservative balance on the bench.
He would have in his sights the record of William O. Douglas, appointed by Franklin D. Roosevelt, as the longest-serving justice.Douglas served for 36 years and 206 days from April 17, 1939 to November 12, 1975. Thomas is about four years shy of the record, having served for 32 years and 350 days, as of October 7.
By January 20, 2025, when the next president will be inaugurated, he will have served on the bench for 33 years and 89 days. By January 20, 2029, the following inauguration day, he will have served for 37 years and 89 days, surpassing Douglas.
As of September 16, Thomas was the 10th-longest serving justice in the court's history. He has served 12,017 days so far. To become the ninth-longest serving justice, Thomas would need to serve another 255 days to surpass Justice Joseph Story, who served from February 3, 1812 to September 10, 1845. In total, Story served 12,273 days on the court.
From that point, he would only need another 20 days to become the eight-longest serving justice, a spot currently held by Justice William Rehnquist, who served from January 7, 1972 to September 3, 2005, a total of 12,293 days.
He would also surpass some of the most well-known justices throughout history, including John Marshall, who served from February 4, 1901 to July 6, 1935, a total of 12,570 days.
Carl Tobias, the Williams Chair in Law at the University of Richmond, believes Thomas has the grit to hold out.
He told Newsweek the justice would be "very independent on the question of his possible retirement" and "impervious to pressure were anyone to suggest that he retire."
The Supreme Court will also be on the mind of millions of voters headed into the election, with the timing of justices' retirements having become a key political question.
Whoever wins in November may have the chance to appoint new justices to a court which has in its power the ability to shape public policy and discourse far into the future.
Former Justice Ruth Bader Ginsburg , who for decades served as one of the court's most liberal justices, declined to retire while former President Donald Trump was president, though she ultimately died in September 2020, just months before the election. Following her death, many Democrats lamented that she should have retired during the Obama administration.
Former Justice Stephen Breyer , also a liberal justice, retired in 2022, giving President Joe Biden the chance to appoint his replacement. Meanwhile, former Justice Anthony Kennedy, a conservative appointee, retired in 2018, and Trump appointed his replacement.
Who has Donald Trump appointed to the Supreme Court?
Trump appointed three justices—Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett . President Joe Biden has appointed one, Justice Ketanji Brown Jackson .
If Thomas continued to serve under a Harris presidency, he might find some parallels between himself and Douglas, a staunch liberal who sought to serve for as long as possible to prevent President Richard Nixon, a Republican , from appointing his successor.
Douglas suffered a stroke in December 1974 but continued to serve on the bench for months. He ultimately announced his retirement in November 1975 amid concerns from other justices that he was "unable to serve effectively" due to complications from his stroke, reported Time magazine.
Initially defiant, he told a friend just weeks before he stepped aside, "I won't resign while there's a breath in my body —until we get a Democratic President," according to Time.
He had faced impeachment inquiries in the years before his resignation.
In 1970, former President Gerald Ford , then the House minority leader, raised s of impeachment amid concerns about his ties to an organization known as the Parvin Foundation.
Ford accused him of improperly giving legal advice to the organization, which had alleged ties to "Vegas gamblers." For his part, Douglas denied having knowledge of those connections.
Ford also raised concerns about some of Douglas' writings, including a magazine written by the justice that Ford described as "hardcore pornography," according to The New York Times.
Douglas's book Points of Rebellion was also a bone of contention. Ford accused Douglas of supporting political violence, though Time noted 'Douglas urges "political regeneration, not revolution" in the book. An excerpt from the book published by Time in 1970 read, "Violence has no constitutional sanction, but where grievances pile high and most of the elected spokesmen represent the Establishment, violence may be the only effective response."
The impeachment ultimately failed in the Senate and has been viewed by some critics as politically motivated.
Following Douglas' retirement, Ford invited the justice to a state dinner at the White House, a show of unity that would be surprising in the present, as Americans view the Supreme Court as more of partisan entity.
Meanwhile, Thomas has faced calls from Democrats for impeachment inquiries over his trips paid for by Crow.
Representative Alexandria Ocasio-Cortez introduced s of impeachment against Thomas and Justice Samuel Alito in July. She accused Thomas of failing to "disclose financial income, gifts and reimbursements, property interests, liabilities, and transactions, among other information."
However, the s of impeachment have stalled in the Republican-controlled House of Representatives. No House Republicans have signaled support for impeaching Thomas, and only a handful of Democrats signed onto the s. Democratic leadership has not said whether they would pursue impeachment against Thomas if they win a majority of Congressional seats in November.
Control for the House is viewed as a toss-up ahead of the November elections. But a conviction would require two-thirds support in the Senate, meaning it would face an uphill battle even if the House eventually votes to impeach.
Thomas' legacy, whenever he retires, will likely be defined by the court's conservative turn in recent years, including the court's overturning of Roe v. Wade, the case that for decades guaranteed abortion rights across the country, and a ruling giving former presidents immunity from prosecution for official acts.
He also finds himself stalked by more than one giant of legal history.
"He rarely asked questions while on the bench, and he replaced a legal icon, Thurgood Marshall," said Rahmani.
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This story was originally published October 7, 2024, 4:00 AM.
