How Frodo Baggins came up during Supreme Court oral arguments

Yesterday, the Supreme Court handed down a decision in Chiafalo v. Washington, which dealt with whether states can pass laws that penalize members of the Electoral College who vote for a Presidential candidate other than the one chosen by the people of the state in the popular vote. The court agreed unanimously that they can.

Is that a good decision? You can read the pundits for that, or even the court’s opinion — it’s not that long, by Supreme Court standards. I just wanna draw attention to an interesting bit where Justice Clarence Thomas brought up Frodo Baggins from The Lord of the Rings during oral arguments. Really.

It happened when attorney Jason Harrow was arguing on behalf of an elector from Colorado — the popular vote in that state went to Hillary Clinton, but this elector cast her vote for “an alternative Republican candidate.” Basically, Harrow was arguing that electors can vote for whomever they want regardless of the popular vote, and that this was consistent with what the framers were thinking when they were setting up the Electoral College, but Thomas had a fly to throw in that soup:

"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. And you’re saying, under your system, you can’t do anything about that."

Harrow had a response to that particular hypothetical, noting that Frodo, while wonderful, was not real. “Your honor, I think there is something to be done, because that would be a vote for a non-person. No matter how big a fan many people are of Frodo Baggins.”

Frodo came up one more time, when opposing counsel Phil Weiser was making his closing arguments. “My friends on the other side have failed to offer any viable theory on how to address the spectacle of a bribed elector, an elector who votes for Frodo Baggins, or one who would perpetrate a bait-and-switch on the people of the state,” Weiser said.

What’s funny about this story, apart from everything, is that Clarence Thomas has gained a reputation over his nearly 30 years on the Supreme Court — he’s the longest-serving Justice on there right now — for almost never saying anything during oral argument; dude is usually silent as the grave. But in the past couple of weeks, as the Supreme Court has been conducting oral arguments over the telephone thanks to the coronavirus, he’s been a regular Chatty Cathy, speaking up all the time. Maybe he was just shy in front of people all this while?

WASHINGTON – OCTOBER 31: Justice Clarence Thomas poses for photographers at the U.S. Supreme Court October 31, 2005 in Washington DC. Earlier in the day U.S. President George W. Bush nominated judge Samuel Alito to replace Sandra Day O’Connor who is retiring once her replacement is confirmed by the Senate. (Photo by Charles Ommanney/Getty Images)

And he outed himself as a Lord of the Rings fan. Stay tuned for more Supreme Court oral arguments, where Justice Thomas compares competing regulatory bodies to the Starks and Lannisters from Game of Thrones.

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