On Friday, Supreme Court Justice Clarence Thomas told an Atlanta audience that people need to accept outcomes they don’t like and CNN’s Don Lemon and senior legal analyst Preet Bharara were not happy about it.
Lemon began by declaring that “many see” the leaked draft opinion that would overturn Roe v. Wade as “as starkly political and anti-precedent,” and wondered “What has this week done to the Court? What is—what is going on here? Give us the big picture.”
Many people do not see it that way, but Bharara does and after predicting the draft will be the final opinion, took aim at Thomas’s remarks, “we had Justice Clarence Thomas saying, in the last day, I think maybe even it was today, that people need to get used to accepting outcomes. And that's -- that's a good statement as far as it goes, if you are detached from history or you're speaking in a vacuum.”
Not accepting Roe’s overthrowing could be justified because, “when you have an outcome that people think is tainted in some way because there was cheating in some way, or bad faith in some way, or the methodology, or the arguments made in favor of the outcome are things that are unusual and perhaps even unprecedented in constitutional history, then people have a harder time dealing with the outcome.”
What people? What bad faith? What’s wrong with the methodology? What’s unprecedented? Bharara didn’t say. Showing the necessity of Thomas’s comments, Bharara then said if the Court doesn’t rule the way he wants, it deserves to have its loss of trust: “So, I think you’re correct to say as others have been saying, that there is going to be a reduction in the trust and faith and respect people have for the Court. It's been on the slide for a while now, I think approval of the Supreme Court some years ago is about 60 percent, now it's 40 percent and below, and it's going to get worse.”
Despite Alito’s draft opinion stating otherwise and no state legislature moving to ban “other rights,” Bharara fear-mongered, “the door is opened if that opinion stands to the withdrawal and taking away of other rights.”
Lemon then returned to add “And he is saying that the government institutions should be quote, shouldn't be quote, ‘bullied into delivering what some see as a preferred outcome," and added that ‘you cannot have a free society without stable institutions.’ So, I mean, is the Supreme Court being bullied? That's quite an accusation on his part.”
Bharara then tried to claim that one’s First Amendment right to disagree with Court is not bullying, as if that is all the leaker did. Still, Bharara claimed that Thomas’s comments were ironic because pro-lifers and “the Federalist Society” are the real bullies for challenging Roe, “cheating Merrick Garland out of a seat” and by confirming Amy Coney Barrett.
Except, both those things were in the normal order thing and abortion was still legal during those challenges.
This segment was sponsored by Arby’s.
Here is a transcript for the May 6 show:
CNN Don Lemon Tonight
5/6/2022
10:43 PM ET
DON LEMON: This week we got this unprecedented leak, a draft decision many see as starkly political and anti-precedent, senators saying that justices misled them or outright making accusations a fraud. An investigation is happening now. And a country that, you know, is wondering what happens next? What has this week done to the Court? What is—what is going on here? Give us the big picture.
PREET BHARARA: Well, it's obviously an earthquake that we’re being told is about to happen. The other odd thing about this is it's a draft opinion. The Chief Justice John Roberts has emphasized it's not final. The Court has also emphasized that, you know, they will not be bullied. Sam Alito said that in the last day or two and so we can expect that that's going to be the decision, that's going to be a majority decision, although we don't know that quite for certain.
We had Justice Sam Alito saying and I'm sorry, we had Justice Clarence Thomas saying, in the last day, I think maybe even it was today, that people need to get used to accepting outcomes. And that's -- that's a good statement as far as it goes, if you are detached from history or you're speaking in a vacuum.
But when you have an outcome that people think is tainted in some way because there was cheating in some way, or bad faith in some way, or the methodology, or the arguments made in favor of the outcome are things that are unusual and perhaps even unprecedented in constitutional history, then people have a harder time dealing with the outcome. And maybe you'll put the quote up in a minute.
It's also especially ironic coming from Clarence Thomas when the outcome in the country, the political outcome in the country that has been most resisted with violence and by other means has been the election of 2020, which raised a lot of controversy, because Clarence Thomas's wife was in communication with people with respect to January 6 and has been a proponent of the big lie.
So, I think you’re correct to say as others have been saying, that there is going to be a reduction in the trust and faith and respect people have for the Court. It's been on the slide for a while now, I think approval of the Supreme Court some years ago is about 60 percent, now it's 40 percent and below, and it's going to get worse.
Because the other thing about outcomes, since Clarence Thomas was talking about it, is if you engage in an outcome that lays the foundation and opens a door for other bad outcomes, as you and Emily Bazelon were discussing a few minutes ago, that's also going to make people not want to abide by this particular outcome, the overruling of Roe v. Wade.
The basis of the reasoning in that opinion opens the door, and I know some people are having a debate about this intellectually and academically, but the door is opened if that opinion stands to the withdrawal and taking away of other rights. So, it's an easy thing to say in a speech that people should abide by outcomes, but it's not how it works and practice, particularly when it's gone this way.
LEMON: Let's talk about what Clarence Thomas and exactly where he is. He was speaking at a judicial conference, it was in Atlanta, Preet. And he is saying that the government institutions should be quote, shouldn't be quote, "bullied into delivering what some see as a preferred outcome," and added that "you cannot have a free society without stable institutions."
So, I mean, is the Supreme Court being bullied? That's quite an accusation on his part.
BHARARA: No, people -- I believe -- I believe that in the Constitution, speaking of the Supreme Court and the Constitution, there is an amendment, and it's the first one, and people are allowed to express dismay and disagreement with Supreme Court decisions. That's how it works.
You know, the ironic thing about -- the other ironic thing because there are many ironies about it, but one of the ironic things about the Thomas statement, about accepting outcomes and not being bullied, is think of what the conservative reaction -- the anti-abortion reaction has been to Roe for 49 years. Were they accepting? Were they tolerant of it? Were they not resorting to bullying of the Court?
LEMON: Right.
BHARARA: And figuring out ways through the Federalist Society and by cheating Merrick Garland out of a seat in the Supreme Court. And by rushing Amy Coney Barrett to a seat on the Court when the election was just days away? Were they accepting the outcome in Roe v. Wade? They were not. So, it's the height of ironies bordering on just ridiculousness for that kind of statement to be made.
