How Contemporary Con Law Became a Con Job

“Many great and good men sufficiently qualified for any task they should undertake, may ever be found, whose ambition would aspire to nothing beyond a seat in Congress, a gubernatorial or a presidential chair; but such belong not to the family of the lion, or the tribe of the eagle.” 

—Abraham Lincoln, Perpetuation Address (1838)

Contemporary constitutional law has deteriorated into an exercise in sophistry and therefore an exercise in political power, not legitimacy. This university mob is the one Americans should fear. This disturbing truth about the law emerges from the indispensable RealClearPolitics’ clever decision the other day to pair my defense of Justice Clarence Thomas with distinguished Harvard law professor Laurence Tribe’s article smearing Thomas—all in the name of preventing the degradation of American democracy! Tribe’s ingenious advocacy and extraordinary influence have been a major cause of the decline of the law, in both its theory and practice.

The Tribe diatribe distorts Thomas’s opinion in at least three ways, all with the intent of demonizing him as a mere partisan of the outlaw Donald Trump. 

First, Tribe asserts, in contrast with the dissent by Samuel Alito (joined by Neil Gorsuch), Justice Thomas’s solo dissent is another matter altogether.” Second, Thomas “rant[s]” against “the most secure and reliable election in our nation’s history.” Worst of all, Thomas makes an “ominous warning that we may not be so lucky in the future” (which was part of Alito’s dissent, too) thereby “stok[ing] the same false and self-fulfilling narrative of fear and victimization that on Jan. 6 wrought death and destruction on the epicenter of democracy.” 

In Tribe’s view, Thomas is, like Trump, an inciter to mob violence against constitutional democracy and self-government and presumably, like the former president, is worthy of impeachment and removal from office. And in addition to all this delusion and criminality, Thomas distorts the writings of an eminent scholar, who is in too “awkward” a position to defend herself against one of Yale’s distinguished graduates: “Justice Thomas shamelessly distorted the words of Yale Law School’s dean.”

In fact, it is Tribe who practices shameless distortion here, and for a partisan purpose.

Let’s start with this latter, silliest point, that Thomas misrepresents Yale Law School Dean Heather Gerken’s argument about the unreliability of mail-in voting.

Tribe himself is the sophist here for portraying Thomas’s argument as drawn completely from Gerken, when in fact he draws on Adam Liptak’s lengthy  New York Times story, which briefly cites the professor, and the common sense about the subject. Here is the portion of Thomas’s opinion that refers to Gerken:

This expansion impedes postelection judicial review because litigation about mail-in ballots is substantially more complicated. For one thing, as election administrators have long agreed, the risk of fraud is “vastly more prevalent” for mail-in ballots. Liptak, “Error and Fraud at Issue as Absentee Voting Rises,” N. Y. Times, Oct. 6, 2012. The reason is simple: “[A]bsentee voting replaces the oversight that exists at polling places with something akin to an honor system.” 

Heather Gerken, now dean of Yale Law School, explained in the same New York Times article that absentee voting allows for “simpler and more effective alternatives to commit fraud” on a larger scale, such as stealing absentee ballots or stuffing a ballot box, which explains “‘why all the evidence of stolen elections involves absentee ballots and the like.’ 

There’s plenty to draw on from Gerken’s work. Tribe is not wrong to claim one line of argument from her work. But more at issue is Liptak’s use of her arguments. In short, Tribe has differences with the New York Times Supreme Court correspondent’s citation of Gerken. Thomas cited Liptak’s whole article, not just Gerken, and not just absentee ballots but the 2020 COVID-19 mail-in ballot application system. But this is scarcely worth an onion. 

Nonetheless, I am compelled to add: There was no trace of “awkward” in Gerken’s predecessor as dean, Harold Koh, an open detractor of Justice Thomas and a remarkably protean advocate as legal adviser to Hillary Clinton’s State Department (the Libyan bombings by his lights were not only not an act of war but not even an act of violence). 

But leave the Yalies alone to stew. All this is little league sophistry compared with Tribe’s more outrageous accusations. He is dogmatically dismissive of any significant fraud in the 2020 election, even when we see scholarly debate over it—as in the Winter 2021 issue of the Claremont Review of Books, in particular the essay by Michael Anton. Thomas wants clarity on the original meaning of “the Legislature thereof” as in “Each State shall appoint, in such Manner as the Legislature thereof may direct . . . ” Electoral College electors. He was not raising the question Tribe was accusing him of raising, namely, President Trump’s challenge to Vice President Mike Pence to question the electors. 

Thomas was raising the issue in 2020 Pennsylvania (and in 2000 Florida, as well) when the state supreme court intervened in the state election procedures. More fundamentally, what happens when the authority of the people is challenged by an elite within it? Are the states to be constitutional democratic republics—see the republican guarantee clause of Article IV, section 4—or promiscuous heaps of factions, from which might emerge a tyranny or oligarchy? 

On this, Thomas is no different from the position Tribe attributes to Alito and Gorsuch. Thomas’s dissent raises the deeper question of the ultimate source of our adherence to the Constitution—the principle of human equality. He is thus a more profound teacher about the document’s hold on our lives than Tribe and his band of sophists, who ceaselessly quote each other.

In fact, Thomas was lecturing both sides in the election about their responsibilities in making their cases before the court. Both should take notice of the right and duty of self-government, which flows from the founding principle of human equality. Whereas Tribe would cavalierly dismiss the concerns of Trump voters by citing the “experts,” Thomas wants the principle of consent of the governed to be the voice. 

Thus, Thomas reminds us of the moderation the founding principle of equality teaches—see especially Abraham Lincoln’s Temperance Address. We republican citizens should check our own passions, especially our self-righteous ones. 

In this light of moderation, if Professor Tribe had in mind a particular Western movie in his wild accusation that Justice Thomas wanted to bring the “wild West” into jurisprudence, I would rejoin that  Thomas’s Western would more likely be “The Man Who Shot Liberty Valance.” 




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About Ken Masugi

Ken Masugi, Ph.D., is a distinguished fellow of the Center for American Greatness and a senior fellow of the Claremont Institute. He has been a speechwriter for two cabinet members, and a special assistant for Clarence Thomas when he was chairman of the Equal Employment Opportunity Commission. Masugi is co-author, editor, or co-editor of 10 books on American politics. He has taught at the U.S. Air Force Academy, where he was Olin Distinguished Visiting Professor; James Madison College of Michigan State University; the Ashbrook Center of Ashland University; and Princeton University.

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