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In July 2021, dozens of Justice Clarence Thomas' former clerks gathered at a fancy resort in West Virginia for a reunion with the justice. In one photo of the event, standing next to the Justice's wife Ginni Thomas, was John Eastman, one of the masterminds of Donald Trump's fake elector scheme. And indeed, Eastman clerked for Thomas in 1996. Did he get his legal theories on the Electoral College from Thomas? Interesting question.
Clearly some of the other clerks were discomfited by Eastman's presence at the weekend retreat. But it has been reported that the relationship between Eastman and Thomas goes back before Eastman's clerkship and even before Thomas ascended to the Supreme Court in 1991.
In the 1980s, the two worked in the Reagan administration and knew each other there. They explored writings and legal theories that later informed their views on the Constitution. In those years, both were influenced by the Claremont Institute, which holds that people's fundamental rights come from God or nature, and not from government or written documents like the Constitution. These views have now become ascendant in right-wing legal circles.
In the lead-up to the coup attempt, Eastman concocted a scheme in which the state legislatures could toss out their states' respective laws about how electoral votes were to be determined and send in their own slates of electors, presumably in consultation with God.
Legal experts agree that Eastman and Thomas share a similar worldview. Harvard Law professor Lawrence Lessig, who has known Eastman since teaching him law at the University of Chicago 30 years ago, said: "They both look at the law in the same way. The fact that John writes it might well be a signal that Thomas would view it in the same way." While the previous election didn't end up in the Supreme Court, a related case, Harper v. Moore, is up before the Court this term. In its ruling, the Court will have to decide if legislatures are free to ignore state laws and just send in a slate of electors they like. That is actually pretty close to what Eastman wanted. So we may find out an indirect way by June how Thomas would have ruled had Eastman gotten his way and Arizona, Georgia, and other states had indeed submitted multiple slates of electors. (V)