The leak of a draft supreme court opinion on abortion rights has turned the body into a place “where you look over your shoulder”, the conservative justice Clarence Thomas said on Friday, adding that the reputation of the “fragile” institution may have been permanently damaged by the breach.
The opinion suggests the court is poised to strike down a constitutional right to abortion provided by Roe v Wade nearly 50 years ago, and has caused social rifts over the issue to deepen, with nationwide protests to the draft decision expected across US cities on Saturday.
“What happened at the court was tremendously bad,” Thomas, 73, said in a dialog at a conference of conservative and libertarian thinkers in Dallas. “I wonder how long we’re going to have these institutions at the rate we’re undermining them,” he added. “And then I wonder when they’re gone or destabilized, what we’re going to have as a country.”
The comments came one week after the justice said he feared that the judicial system will come under threat if people are unwilling to “live with outcomes we don’t agree with” and that recent events at the apex court might be “a symptom of that “
But Thomas’s comments made before a gathering sponsored by the American Enterprise Institute, the Manhattan Institute and the Hoover Institution, went further as he spoke directly to the leak.
Thomas said it was beyond “anyone’s imagination” before the 2 May leak of the opinion that even a line of a draft opinion would be released in advance, much less an entire draft that runs nearly 100 pages.
“The institution that I’m a part of – if someone said that one line of one opinion would be leaked by anyone, you would say, ‘Oh, that’s impossible. No one would ever do that,'” he said. “There’s such a belief in the rule of law, belief in the court, belief in what we’re doing, that that was verboten.”
The anti-abortion justice continued: “And look where we are, where now that trust or that belief is gone forever. And when you lose that trust, especially in the institution that I’m in, it changes the institution fundamentally. You begin to look over your shoulder. It’s like kind of an infidelity, that you can explain it, but you can’t undo it.”
Thomas’s comments speak to a split in opinion over the breach, with conservatives drawing attention to the leak itself and liberals focusing on the content of the 83-page document.
“Anybody who would, for example, have an attitude to leak documents, that general attitude is your future on the bench,” Thomas said. “And you need to be concerned about that. And we never had that before. We actually trusted – we might have been a dysfunctional family, but we’re a family.”
Asked if respect for ideological differences could be fostered in Congress and in the public arena, Thomas said: “Well, I’m just worried about keeping it at the court now,” he said before praising his former colleagues on the bench.
“This is not the court of that era,” he said.
The justice also spoke to protests at conservative justices’ homes in Maryland and Virginia, saying that conservatives have never acted that way.
“You would never visit supreme court justices’ houses when things didn’t go our way. We didn’t throw temper tantrums. I think it is … incumbent on us to always act appropriately and not to repay tit for tat,” he said.
The court has said the draft does not represent the final position of any of the court’s members, and Chief Justice John Roberts has ordered an investigation into the leak with a focus placed on a relatively small group of law clerks with access to draft opinions.