Clarence Thomas Transcript
Taped September 30, 2016
Table of Contents
KRISTOL: Hi, I’m Bill Kristol. Welcome to CONVERSATIONS. I’m very pleased to be joined today by Justice Clarence Thomas of the Supreme Court – just finished a quarter century on the Supreme Court. It’s hard to believe.
THOMAS: Well, yeah, it is.
KRISTOL: I knew you before then. We’re not as young as we once were.
THOMAS: Isn’t that interesting? I met you, what, 30 years ago?
KRISTOL: In the Reagan Administration. This will be your first term without your good friend and wonderful colleague, Antonin Scalia. You spoke so beautifully about him, and you eulogized him at his funeral, and then later on you made some remarks when you gave the Hillsdale commencement address about Justice Scalia. Do you want to say a word about him?
THOMAS: Well, I mean it’s one of the hard parts of being on the Court, watching what happens to your colleagues as time goes by. I’ve always said that the hard part was watching your colleagues get older and pass away.
And, of course, his sudden death. No one could have anticipated. Which is pretty shocking. So, I mean it’s a big loss in a lot of ways. He was a friend, he was somebody I trusted, someone I felt instinctively close to, worked with for almost a quarter of a century.
KRISTOL: And you agreed on a lot of the issues – not all issues – and constitutional law, I guess, though, coming from different backgrounds.
THOMAS: You know it’s really interesting. I had not met him until I got to the Court. I had met Maureen [Scalia] briefly, but not him. I had read some of his work – he hadn’t been on the Court that long – and thought that his approach was probably the most true to the original understanding of the Constitution, particularly in cases like in the Olson case. I think even Mistretta, some of those.
At any rate, I thought that I could agree with him, but I didn’t know him. They had sort of – he had this reputation of being somewhat caustic, at least that’s the way he was portrayed. Well pleasantly, when I get to the Court, I’m pleasantly surprised. He’s really a fun man to be around. Never saw that side. He might disagree with you, but that was nothing.
We never had major disagreements. There was a respect even when we didn’t agree on things, it was done in such a fun way. He would dissent – I think in one of his dissents in his last term, he referred to one of my opinions involving the Fourth Amendment, where I said it was an anonymous tip about a drunk driver that turned out to be guys hauling drugs, and he dissented.
I thought it didn’t violate the Fourth Amendment, search and seizure – unreasonable searches and seizure rule – and then he thought it did, and so he dissented and said that my opinion was “a liberty destroying cocktail.” I just thought that was hilarious. I understood his point, but he would say things like that, and people would portray that as caustic.
He thought it was really good use of language. That was a lot of fun. I truly will miss him. He was a wonderful friend, and somebody I trusted implicitly.
KRISTOL: I want to ask you about constitutionalism and originalism and the whole philosophy of law that you have followed and advanced so much, I think, in your quarter century on the Court. You mentioned the Morrison v. Olson, the case where, I recall, Justice Scalia dissented alone and then was vindicated I think, everyone thinks, 15 years later or something like that.
THOMAS: It was the independent counsel that he thought violated separation of powers. And it turns out, you know, so years ago I’m sitting at the EEOC [Equal Opportunity Employment Commission] and the guys that got me very interested – I was just interested in government and why this form of government and what were the protections, so I hired these speechwriters, Ken Masugi and John Marini – these Straussians. And that began this really wonderful intellectual journey.
But along the way, we look at things like some of the Court’s opinions, including the separation of powers – it was Morrison v. Olson. I remember giving a speech at CATO, when it was just in a small building on Capitol Hill, saying that the Chief Justice had disappointed us – Chief Justice Rehnquist had disappointed us. I’d never met the man; didn’t think I would ever meet him.
KRISTOL: Did he remember this speech later when you joined the Court?
THOMAS: You know he probably did, but he was good enough not to mention it. But Justice Scalia’s opinion, pointing out that this jeopardized liberty, individual liberty. You had these structural protections in the Constitution – separation of powers, of course, enumerated powers, federalism – that had checks and balances in there to protect individual liberty.
When you start violating those, you jeopardize liberty. And that was consistent with what I was – you know, since if you follow Magna Carta and up to our Founding, I said, “Well, I don’t know him but that’s pretty much my view.” Well, I was, of course, when I went through my confirmation that was raised – “How could you dare? Don’t you think we should be able to do this, that, and the other?” I think it was Senator Kennedy.
And to see years later, some years later, when the shoe’s on the other foot, that people suddenly see that principle, that this could be of concern. That was probably the first opinion of Justice Scalia’s that I looked at with any sort of exactness and certainly expressed my agreement with him. It was on that basis that I thought he would be someone I agreed with when I got to the Court, but that’s a fairly thin read.
KRISTOL: One thing – I was interested by that, because I was talking to a friend who teaches at a law school, saying we were going to have this conversation. And he said, “One thing I’d like to ask Justice Thomas” – and this is sort of inside baseball, but I think people are interested in this.
You have to pick your fights on the Court. Obviously, you say what you believe, and you interpret the Constitution or the laws and statues, but also you make alliances with other Justices, you sometimes don’t say everything you would say in order to have five votes – and he said he’d be curious what you thought the relative weight of a strong, forceful dissent – even if there is only one of you or two of you – is, as opposed to pulling some punches, let’s say, to get a few other Justices on board or to be part of the majority?
And I thought of Justice Scalia’s lonely dissent in that case, and he was sometimes criticized for being, you know, too tough-minded in a sense – dissenting instead of looking to build alliances. How does that work, and how do you think about that? Or do you think much about it? I’m curious about that.
THOMAS: I think that’s an individual thing, but I think that – this is not a political body. You can’t trade off – “You give me this bridge, and I’ll give you that.” I don’t do vote trading. I think that’s – from my perspective, I’m not speaking for other people – I don’t think that’s consistent with the oath I took.
I think there are matters of principle that you can’t concede. I think there are first principles, there are – when you concede the premise, you lose the argument. You have to really be careful with that. If you look at, for example, when I got to the Court, I wrote some “dormant” Commerce Clause opinions; I went along with them because I hadn’t thought it through. But, over time, you think these things through. And I think once you think them through, you are obligated to explain why this approach versus another approach. You’ll see, like in Camp Newfound, I took my leave of the “dormant” Commerce Clause; that’s simply because it ceased to make sense to me.
You see it also in the area of commercial speech, where, I didn’t have an axe to grind when it came to commercial speech. But as you think it through, I think, in the Central Hudson “test” – which was a four-factor “test” that I didn’t quite understand – and it didn’t do any real work. It would be like being in your car, stuck in the mud, and you’re just constantly pressing the accelerator. Well, that’s not doing any work; you’re not going any place, you’re literally spinning your wheels. And I just thought that we shouldn’t have tests – Justice Scalia agreed with “the Lemon test” in the Establishment Clause area – that if it’s not doing any work, and it just looks like it’s masquerading as a test that’s doing work, you need to be really careful with that sort of thing, and you can’t go along with that.
KRISTOL: Even if it’s been around for a long time, right? You’ve been thought to be a Justice who is more willing to challenge sort of “established” opinions in constitutional law, by going back to the original understanding of the Constitution.
THOMAS: Well, you think about it. You know, people say that, but then, how do you explain a deviation from Plessy v. Ferguson? It was a 70-year-old precedent.
KRISTOL: With a lonely dissent, right? By Justice Harlan?
THOMAS: Exactly, who didn’t go along. How do you explain, for example, Brandeis’s overruling of Swift v. Tyson and Erie v. Tompkins? That was a 96-year-old precedent; nobody asked him to overrule it. So, the Court changes.
I think what happens, and it’s for this reason I taught at the University of Georgia, earlier this month, on stare decisis – took quite a bit of time. The point was to just go through all the cases, and to go through the development of the whole notion under English common law and through our own jurisprudence. And I think what has happened – and maybe [Arthur] Goldberg was right in his assessment of stare decisis – where people get what they want in the law and then they say, “If you want to review that, you apply stare decisis rigidly. For what I would like to do, the advances I’d like to personally make in the law, we will have sort of a loose form of stare decisis.” That’s the point Goldberg makes, I’m just recasting what he said; the approach wasn’t quite that, but it was similar to that.
You know, I think we are obligated – even if we follow cases – to explain to people, not to just sort of rotely cite cases as though people are automatons or something like that. This is, you know, this sort of ritualistic incantation of old cases: “This is handed down from God. This is from the Burning Bush. This is the Decalogue of law, and you are to accept that. It’s revealed wisdom.” It’s not. It’s an opinion. Even if you follow it, you should have people justify it, and you should explain it. And you should understand it. If you want, if you’re going to affect people’s lives, you should understand exactly what you’re doing – even if you have to go along.
So again, you know, one of the cases where I did that involved – it was a McDonald case involving the Privileges or Immunities Clause in the Fourteenth Amendment. Well, those words are in the Fourteenth Amendment. And it is central, it is really critical to the application of the Fourteenth Amendment. Why have it? It addresses this problem that you had with Dred Scott. Certainty, it’s personally something that affected by life.
What you’re saying is “this is there; substantive due process is not there.” Shouldn’t we at least explain to people why we are talking about something? We’re using a phrase – something that is not in the Constitution – “substantive due process,” to so affect our lives, and then, here’s something that’s in the Constitution – “privileges or Immunities” – and we’re not using it, or we have bled the heart of it out. See what I’m saying? We’ve depleted it of its meaning in the Slaughterhouse Cases.
KRISTOL: I’m old enough to remember when you – before you were on the Court, really – and then Justice Scalia and a few others were ‘originalists.’ I’m not even sure when the term even came about, but you were criticizing the whole trend of letting constitutional law substitute for the actual Constitution, and go back to the real meaning of the Constitution, and then there were differences among the originalists. In a way, it’s an amazing success story over 30 years, I would say, of something that was just at the very fringes of the law schools and of the Court becoming a central strain in modern jurisprudence.
A lot of people, a lot of young people – your clerks and students and people who admire you, and Justice Scalia, and others – elaborating on many, many, and debating different aspects of originalism – I’m curious, how do you think it stands now? Do you feel like this is – is originalism ascendant? Is it in retreat a little bit? Have you succeeded intellectually, do you think, in convincing a lot of people and, especially, younger people coming up that this is the right way for judges and Justices to interpret the Constitution?
THOMAS: You know, I don’t know. I guess I don’t spend a lot of time thinking about that. Justice Scalia, what a good man, he a lot of time would think that, you know, there were times – I shouldn’t say a lot, but there were times he questioned whether or not he was wasting his time. I think we all go through that, particularly in this city.
And I remember saying to him, I said, “You know, Nino, people now actually, even if they’re pretending, they have to go through the motions of reading the text – of looking at the intent of either the drafters of a statute or the Framers of the Constitution, people who actually wrote it, they have to go back and look at what they thought and at least try to come up with some rationale of why they would have done this, or done that.”
So, in that sense – just sort of the mode that you use in interpreting documents or interpreting statutory or Constitutional provisions – it’s the approach that’s been affected. Now there are a lot of arguments about what’s exactly the right approach, and I understand that, but I don’t usually spend a lot of my time on that.
I’m just trying to get the right answer. When I teach with young – I just love doing that. It’s a lot of work; it’s a busman’s holiday, but it’s an important holiday. Students are curious. They really want to be told the truth. And I think they tend to be a little bit skeptical in doing that; skepticism can be healthy skepticism, and it can be unhealthy skepticism.
What I’m trying to do when I work with them is tell them not the answer, but just simply say, “Wouldn’t you want to know more about this case? Wouldn’t you want to know more; wouldn’t you want to feel confident that you’ve done a lot of work to make sure you’re right?” If you’re a doctor and someone comes in with a complicated health problem, I think a doctor, they say “Get a second opinion, let’s run a couple of tests to make sure, let’s do this, and let’s do that. I think this is the answer, but we should do some more tests to make sure.”
Why don’t we do that with law? That’s basically the approach that we take with originalism. You know, I don’t know what the answer is; I don’t want to make up a theory and then it’s all about me and affecting your law. I want to go back and make sure this actually is what the Framers or the common law or the legislature said the law was. Then you take into account precedent, but you want to make sure the precedent is right. Do you think we’ve had an effect? You know, I don’t really get caught up in that part.
KRISTOL: I think you have. I just was curious. I’m struck, you know, I audited – I think, I don’t think I took it – a Constitutional law course my first or second year in college, so this is the very early 70s. And I didn’t know anything about it. I thought, “Okay, I think this will be a real interpretation of the Constitution and what they meant and, of course, the development.”
And I was really – well, I’ve got to say – shocked that it was just people’s opinions based on the times, and with the politics of the different Justices, and various theories that some law professors had developed – some of which were intelligent and some of which I agreed with, for that matter – but it didn’t seem to have much to do with the actual Constitution. I do think, in that respect, a combination of your work, and Justice Scalia’s and others, and some of the political scientists who rediscovered, I’d say, and some of the political philosophers, the kind of the importance of Constitutionalism. I do feel like that’s a big difference.
They can’t ignore – in public life, too, political life, talking about the Constitution is so much more central for at least some political figures than it was, I don’t know, 30, 40 years ago, it seems to me. You must feel that I think, don’t you? When you went to Yale Law School, did you study the Constitution or constitutional law?
THOMAS: No, we did not study the Constitution, we studied constitutional law. And there is a difference. That’s probably, you know, you mentioned that – you know, I had sort of like had my questions about that, is precisely because of that. I think it is, I’m probably the way I am because I went to Yale Law School, and that was unsatisfying when I studied constitutional law. They were good people. They were smart people, if not brilliant people. But we didn’t study the Constitution; we – in fact, if you go back, you see that the Constitution was in the back of the casebook. I think it was [Gerald] Gunther’s casebook, so it was in the rear of the casebook, and we rarely referred to that.
It would seem to me you would do it the other way. You know, Hillsdale has this Constitution Reader. That’s what I would start with today if I were teaching, because you’d want to start with the Founding documents, perhaps go through the drafting – even if you had them read something that was not necessarily law, like Ratification or something, one of those books – so people can actual go through it and feel it. Or even watch. Even watch like the John Adams series. You don’t read the book – at least watch, and get a sense of what are they going through and sort of founding a country? What are some of the problems as a result of that? What were the risks of doing that? What were they concerned about, you know, with the confederation and things like that?
You know we didn’t do it when I was in law school, and that’s one of the reasons I think we ought to do it. I’m not sure about these theories. I’ll tell you the theories that got me in law school. They would talk about, like, applying the Bill of Rights to states. Well, because, on its terms, the Bill of Rights didn’t apply to states, it applied to national government so you’d say “through the Fourteenth Amendment,” so you come up with absorption theory. You got “partial incorporation,” “selective incorporation” – you got all these different theories, “total incorporation.” And I said, “What the heck are these? These are just theories. It’s not there, the people who drafted the amendments didn’t say it. I’m just interested in that.”
And so you were supposed to accept that. And then the basis for which ones to absorb, you know – not jury right, but maybe the First Amendment right? But, then, why the Establishment Clause? You never got a satisfactory explanation. You’re trying to find answers to those sorts of things. The analogy I use is this, with my kids: Imagine that every case, that law is a very long train – I mean, those long trains that block us at railroad crossings when we’re in a hurry.
Let’s say there are hundreds of cars, like Supreme Court cases. And every new case is adding one more car to a very long train. Now, I think before you do that, you have an obligation to take your time, walk through all the cars, see what’s up in the engine of the train, see who’s driving – it may be an orangutan, for all we know; it may be going over a cliff, for all we know; it may be running headlong into a station, for all we know. Then why are we adding another car? So I think, before, we are obligated to at least know to what train and why we are adding a car and where is that train heading before we add another car.
Just think of it that way. People say, “You don’t believe in stare decisis,” or this – I say, you’re just going through the train to make sure it’s headed in the right direction, and there’s a basis for it in the Constitution, in the Founding documents, in our history, in our tradition, and not something that’s made up in the mind of a law professor or a very crafty lawyer.
KRISTOL: I talk to young people, as you do, and a lot of ones, especially who are more on my side of the political spectrum are sort of depressed these days – and the last term of the Court and what – the constitutional moment seems to have passed, and are we ever going to get back to real constitutionalism, limited government, and a good understanding of the separation of powers and the Constitution in our country? I don’t know. I’m not sure I do a very good job of reassuring them. I do usually cite the dissents that then get vindicated years or decades later, whether it’s Justice Harlan or Justice Scalia or you.
What do you say? Obviously, you’re doing your job as a Justice, so you’re worrying most about getting it right, but are you encouraged, and how do you encourage young people? What is your sort of general view of the current state of constitutional self-government in America? Not so much the Court, but the broader question, you know? You’ve thought a lot about this and spoken a lot —
THOMAS: You know, I don’t know if I’m the – I don’t know. I’m more concerned about other things – the academy, the culture, the state of education.
KRISTOL: Do you feel sometimes that we’re swimming awfully upstream here against awfully big institutions and forces?
THOMAS: I think we are required to swim upstream no matter what it is; I think it’s a matter of principle no matter – My grandfather was that sort of person, that no matter what others were doing or how bad it looked, we had things we were supposed to do.
I think we are required to do what is right despite how bad things look. I don’t know whether or not, I think it was when I was a kid – I’m Catholic, and one of the great sins was to despair. I think that it’s hard to get up in the morning as a despairing person.
You have to be hopeful. You know, I just look around as I was riding to the studio to do this and coming across Pennsylvania Avenue. When I came here in 1979, the prime interest rate in the country was around 20 percent. We were immersed in the Iranian hostage situation. You had inflation that was double digit. It was the era of malaise – I always say “mayonnaise.” I was riding a bus down Pennsylvania Avenue, commuting to Capitol Hill where I worked. Those days Pennsylvania Avenue was open all the way through, and I couldn’t afford to drive a car or anything in.
And the world changes; things change in your life. Was I in a position to despair then? Absolutely. Things weren’t really looking good. But you are obligated not to despair. Now, about our country? Yeah, things may not look good, but we are obligated not to despair. Do I know what the outcome is going to be? No.
Do I know that we are going to be vindicated? No. But that’s not why you do it. You don’t do it to necessarily persuade, to feel that you’re going to persuade other people – you do it because it’s right. I think we are obligated to do that. Do I hope that, at some point, it becomes the, sort of the prevailing view? Yes. But I have no guarantee, and I don’t do it on the condition that I win.
I don’t mind writing dissents, but I don’t write them to be showy, I write them because I think I’m right. It’s sort of like, I think we’re obligated to show the, sort of the – those who are not there, to say to them, “Here’s a way I think it should be done, and here’s why.” It’s not like you cast a vote in the Senate or something like that. You have to explain everything, and you have that wonderful opportunity to do precisely that.
You explain it to your colleagues, too. I loved working with Justice Scalia because we read everything. It all mattered. Syntax mattered, vocabulary mattered, the history mattered – everything. In the small case, the big case. He didn’t just wait for the big case and then show up and “that’s all I care about.” No, no, no. Every single case, every single sentence, every phrase. Every turn of phrase, every footnote.
And so you work that way with people – you persuade them, you bring them along. They, in fact, they also then help you as you write your opinions, even when they disagree. If they challenge this point, then you have to respond to that. You have to make the point sharper. This point may be unclear, but by challenging it, you have clarify. Does that make sense?
KRISTOL: Totally. One of the great things about America is, even if one doesn’t like these opinions, these decisions, you do have to write the opinions. If people think about that, it shows the commitment of our government, really, and certainly the judicial branch, to having to defend one’s opinions.
You don’t just have a vote and that’s it, and no one has to explain the vote. Once you have the requirement of explanation, it is a kind of tribute to the importance of reasoning and the fact that self-government involves thinking about what the right thing to do is. It’s not just majority vote; that’s it, be quiet if you lose.
THOMAS: At the end of term, I go to Gettysburg, and I take my law clerks there. We were there one time at Little Round Top – I kind of like all these things. So this guy runs up to me – he’s breathless.
He’s like – he’s in great shape, you know, but he’s breathless – he said, “Look, I want you to sign this,” and he had this opinion of mine on a sort of fake parchment paper he’d printed it out. He said – I looked at it, and it was like a Federal Maritime Commission opinion I had written. He said, “I read this. Thank you. I’m not a lawyer, but I understand. And thank you for writing it in a way that I understand it.”
It’s sort of – like I enfranchised him or something. But at any rate, he hands me this thing, and I said, “Why are you reading the Federal Maritime Commission opinion?” He said, “That’s what this is all about,” speaking of Gettysburg. I had no idea. I thought it was just a Federal Maritime Commission. Think about it, when you write – I also think opinions have to accessible. They have to be like the ramps on a street or something like that, they have to be accessible to our fellow citizens.
It’s their Constitution. This guy, that was probably one of the great moments for me. So here is a guy, who’s not a lawyer, not a scholar or anything – he’s just a citizen who believes in his country and wants to follow what’s happening to his country and his Constitution, and the opinion is accessible to him. He didn’t say he agreed with me, by the way, but he said he understood. He felt as though he was a part of whatever process it was that was going on at the Supreme Court.
I think sometimes when we write these opinions, we write in language that is inaccessible. I tell my law clerks that “Genius is taking a 20-dollar idea and putting it into a two-dollar sentence. It’s not taking a two-dollar idea and putting it into a 20-dollar sentence.” I think sometimes we do the latter, not the former. I think it’s really important to sort of – not in dissents or in concurrences or whatever – to show, to explain to people what we’re doing and why we’re doing it. Not to come up with words – you know, “negative precepts,” “levels of generality,” “double entendres” – and all these sorts of things that people are thinking, “Oh my goodness, what the heck is going on there?” It’s sort of hides the ball. I think we should do better than that.
KRISTOL: That’s what government by reflection enjoins, right? They have to see the reflection and understand it.
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