Supreme Court Justice Clarence Thomas should be feeling optimistic. He’s a member of the 6-3 Republican-appointed majority on the highest court that is rapidly reshaping American law in a way Thomas has always wanted. To name a few of his recent victories, Thomas and his colleagues have ended the constitutional right to abortion, banned affirmative action in higher education, helped Donald Trump return to the White House, and this term are expected to toss out what’s left of the 1965 Voting Rights Act. For a reactionary like Thomas, things are going very well.

And yet, Thomas is worried. Maybe even mad. In a radical speech that drew headlines for its thinly-veiled animosity toward his fellow judges, fellow conservatives, and political opponents to his left, Thomas warned that the nation’s founding ethos that “all men are created equal” is under threat. His remarks, delivered at the University of Texas at Austin this week, pit the ideals of the Declaration of Independence against the scourge of “progressivism.” As Thomas warned, “It is not possible for the two to coexist forever.”

Press reports were rightly attuned to Thomas’ incendiary rhetoric and the fact that this was no ordinary speech for a Supreme Court justice. But the quick dispatches missed the critical historic and legal context of Thomas’ remarks—and just what they may foreshadow.

Thomas goes further than attacking agencies as undemocratic—to him, they are contrary to God.

Thomas’ speech, pegged to this year’s 250th anniversary of the Declaration of Independence, comes in three parts. First, Thomas framed the revolutionary document as evidence that American law is not grounded in a legal text but rather comes from a higher power: that people’s equality is “endowed by their Creator” and that their “unalienable” rights come from God. “The Constitution is the means of government,” Thomas said. “It is the Declaration that announces the ends of government.”

This is nothing new from Thomas, who has been a fan of this “natural law” theory—the idea that there’s a superior moral code through which the Constitution must be interpreted—for decades. The danger in this theological approach is that an adherent might replace the dictates of a statute or the Constitution with his theologically-informed preference. At Thomas’s confirmation hearing in 1991, then-Sen. Joe Biden pressed the nominee on his many endorsements of natural law theory. At the........

© Mother Jones