Frodo Baggins is now forever part of the Supreme Court’s historical record.
In a line of hypothetical questioning during Wednesday oral arguments on the Electoral College, Justice Clarence Thomas brought up the hobbit from the “Lord of the Rings” trilogy in a case that would decide whether states can bind presidential electors to vote for the state’s popular-vote winner.
Thomas has drawn attention over the past two weeks for asking more questions during the court’s new pandemic-prompted telephone system during oral arguments than he has asked for more than a decade in the courtroom. On Wednesday, when posing a hypothetical to Jason Harrow, representing a so-called faithless elector from Colorado, the newly loquacious justice used Baggins as a case study.
Harrow was in the midst of making the argument that electors are best placed to make the ultimate decision for whom to cast their vote. But Thomas was poised to poke a hole in his argument, armed with characters from J.R.R. Tolkien’s work.
“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,” Thomas said.
Harrow was quick to point out to the justice that Frodo Baggins is not a human.
“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,” Harrow said.
“I do think the important point is that the framers hashed out these competing concerns,” he added. “They understood the stakes and they said among these competing hypotheticals, electors are best placed to make the ultimate selection. That hasn’t changed.”
Baggins was once more invoked during closing rebuttal by opposing counsel, Colorado Attorney General Phil Weiser, who was defending the state’s move to replace an elector who attempted to vote for someone other than Hillary Clinton, the state’s winner, after the 2016 presidential election.
“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.