After years of diligent silence during oral argument, Justice Clarence Thomas has already piped up twice since the Supreme Court started livestreaming arguments. It’s almost as if the notoriously disengaged jurist has spent the last 29 years waiting for an audience. Perhaps this is why the Court remained so steadfastly opposed for so long.
While hearing argument on Colorado Department of State vs. Baca, the faithless elector case, Thomas jumped in to ask counsel if there could be any check on an elector’s discretion:
“The elector, who had promised to vote for the winning candidate, could suddenly say ‘you know, I’m going to vote for Frodo Baggins. I really like Frodo Baggins,’” said Thomas. “And you’re saying, under your system, you can’t do anything about that.”
As Jason Harrow, the attorney for the faithless elector from 2016, immediately pointed out, this question is remarkably stupid since electors have to vote for real people. Also, if Hawaiian birth certificates couldn’t be trusted, good luck dealing with the bureaucracy of the Shire.
Unfortunately the other side picked up on this strawhobbit argument and cited it later in the argument as proof that electors cannot be legally bound by states lest mischief ensue. It was a disingenuous jab but at least it helps the right side. Efforts to replace the archaic role of the Electoral College with one that simply hands the presidency to the winner of the popular vote hinge on the power of states to keep electors faithful so if it takes freaking out over halflings to get that result, so be it.
But all this raises more interesting questions about Clarence Thomas: Low-Key High-Fantasy Nerd. The references people deploy can reveal a lot about who they are. He could’ve asked about Jay Gatsby or Gregor Samsa or a Republican who opposes de facto segregation — they’re all fictional characters, so why does his mind jump to the hero of the Lord of the Rings trilogy? There are a lot of reasons to appreciate Tolkien, but the fantasy genre does feed a Manichaean worldview, an unhealthy romanticization and whitewashing of the past, and a politics that sees people as defined by birth — dwarves are violent miners because they’re dwarves and not because they live in economically distressed mountain communities. Not that there aren’t other reasons to appreciate the books, but if he’s the sort of superfan ready to drop Frodo in a Supreme Court argument it certainly suggests he’s thought a little more deeply about the books than people probably should and now that it’s been highlighted, it’s hard not to see these strains in his jurisprudence.
Does Justice Thomas see his Supreme Court as an ersatz Fellowship? Perhaps one he envisions as sent on a grand quest to destroy the One Ring, or “voting rights” as we call them? In this model, I assume Roberts holds the Fellowship together as its Gandalf, Alito is believable exuding that Samwise sidekick-y vibe, Kavanaugh doing the Boromir thing and trying to take stuff without consent.
But seriously, is Thomas a big Tolkien guy? Or is this more of a Zeppelin thing where he’s only vaguely following the plot from the lyrics of epic ballads about love and longing and Hobbits? So many questions.
Wait, did Long Dong Silver ever do a Lord of the Rings parody?
SUPREME COURT JUSTICE CLARENCE THOMAS DISCUSSES FRODO BAGGINS DURING ELECTORAL COLLEGE ORAL ARGUMENT [Newsweek]
Earlier: Clarence Thomas Speaks During Supreme Court’s First Ever Remote Oral Arguments
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.