Justice Thomas Increasingly Protective of Constitution
[Below are the remarks of United States Supreme Court Justice Clarence Thomas, who received OCPA’s 2000 Oklahoma Citizenship Award on May 8.]
Well I think I’ll quit while I’m ahead. Thank you so much, Governor Keating, for your very generous introduction; I’m humbled. I’m deeply humbled by him. I have some friends here, Dean Kothe, who has been a dear friend; President Holloway from Langston, I’ve known 20 years now, here in Oklahoma, and of course my friend Pat McGuigan who was less than generous to himself and his great efforts. They were much deeper and more profound than he let on.
I’d like to thank Dr. Brown for his hospitality, and I’d particularly like to say a word about the Oklahoma Council of Public Affairs. I think that it is so important to participate in this government if we are to preserve it and continue to be a free people. I think that there are many people who are willing to reap fruits that they have not taken the time to sow. They are willing to take advantage of freedom and make no effort to sustain it. And it’s always heartening to be a part of an organization and to see an organization that works to preserve what is so important to sustain both freedom and liberty.
My wife, Virginia, could not join me—a few years ago we decided to take in and raise my great nephew, our great nephew. Virginia, as many of you know, is a Senior Fellow at the Heritage Foundation—and I might say in an unbiased way is probably their best—but she’s home with our little nephew Mark who in and of himself is an interesting human being. My son is 27 years old, and Virginia and I are having, for lack of a better word, a “hoot” raising this young man. He turned to her some months ago—he’s a little guy, and he’s in the backseat and he says to her, “Aunt Virginia,” (by the way, Mark is bi-racial) he says, “Aunt Virginia, I’m black and I’m white—that means I’m Italian.” So Justice Scalia found that interesting.
It is no coincidence, I think, that I have the opportunity to be at the National Cowboy Hall of Fame. What a beautiful room and building this is.
Cowboys have always been my heroes. I grew up in an era of westerns, and I was reminded in this room behind us of those westerns: Wyatt Earp and Bat Masterson, there was the Lone Ranger, there was Hopalong Cassidy, there was Wild Bill Hickok, there was the Cisco Kid. That’s my life, that’s my youth.
Some of my favorite comics in those days were “The Two-Gun Kid,” “The Rawhide Kid,” and “Kid Colt.” Those were my misunderstood loners who rode from town to town, helping but always being driven out. And in the mid-1970s I would somehow fall in love with an album by Waylon and Willie, “Outlaws,” which contained such a wonderful song, just happened to be “Cowboys Are Always My Heroes.”
Like so many kids of that era I dreamed about riding across our great plains. I was caressed in those dreams by a broad expanse of freedom.
I thought of our mottos as cowboys, that we picked no fights and we ran from an equal number. Cowboys and superheroes dominated my imaginary world long before I read Hayek or Hegel. Cowboys were my heroes long before I fully understood what heroes really were and long before I feasted on many of the novels of Louis L’Amour.
Childhood now recedes inexorably into the distant nostalgic past, along with my hairline. That era, I think the golden era of westerns, is long gone. That is unless you have cable T.V. and the all-western channel. Like my cowboy heroes, my grandfather was a fiercely independent man. He rose early and worked longer so that we would be self-sufficient. He was frugal and hard-working to avoid dependency. He drove himself to avoid being driven by others. He controlled himself to avoid being constrained by others. He ruled himself in order to avoid being ruled by others. And he understood long before I did that segregation was government-sponsored. I underscore that. Segregation was government-sponsored. But like so many of my heroes (and unlike me), my grandfather — a brilliant man — was unhampered by formal education. And today, in all too many instances, it does seem to impede not only the obvious but common sense.
Well, enough about my grandfather and my heroes. I am now completing my ninth term on the Supreme Court of the United States. Where has the time gone? It’s hard to believe that I’ve been there now the better part of a decade. I find it, I might add, increasingly difficult to talk about the Court in any meaningful way. The explanations for my votes and the cases are set out in detail in my opinions. I’m not a politician and I have no programs or policies to offer, nor do I at this point in my life have a need to develop support, constituencies or votes. But this does provide an opportunity to thank so many of you who stood and befriended me when I needed both support and friendship — and I say thank you.
I also must note that so much of what we could talk about is off-limits these days. I can’t talk to you about the partial birth abortion case that we’ve had. I can’t talk to you about the Boy Scouts case that we’ve had. I can’t talk to you about the 11th Amendment cases that the Court may consider. There’s not a whole lot to talk about, and as my wife so frequently reminds me — some of what we do is just plain boring. But let me just briefly tell you about what I do for a living, and I’ll be brief because I think it’s more important to respond informally to things that are of interest to you. We simply do three things, and we’re now phasing out for my ninth term. We continually decide which cases come to the Court. Now there seems to be some confusion about that, but it’s a simple matter. Four members of the Court decide which cases come to the Court. We have 8,000 requests, and we have this year taken 80 cases, or about 80 cases. When we reject a case it means nothing other than we have rejected those cases.
Secondly, once we get a case we decide that case. Five votes, the case is decided. Finally, after we decide a case, we can’t do it by a flip of a coin — we write our opinions, as I noted earlier, and set out our reasoning. You can say our reasoning is steeped in illogic, but it is there for all time for people to examine, reexamine, to criticize, to yell about, etc. It’s there. What’s surprises me is how many people have such strong opinions about our Constitution and about what we do and yet have never read a Supreme Court opinion.
Some years ago, when my brother was still alive, he told me that I had written a number of opinions that had disturbed some his friends, and he wanted to know how he could respond. I talked to him for a while, calmed him down, and told him that his best bet was to wait until they had exposed themselves and then ask them, had they read the opinion? Whereupon he could say, “I will not argue with you about something you’ve not bothered to read.” To his amazement that settled all disputes. The opinions are there to be read.
Another point about what I do for a living, and that is misunderstood, is how we work. We work alone; we are isolated in Washington from the rest of Washington. I remember when I first went onto the Court, Senator Danforth joined me and my wife and Chief Justice Rehnquist as I was sworn in informally, and as we walked along the hall in the Supreme Court he looked at the marble and the wood and the brass, and he said, “Clarence, where are the dead bodies? This is a mausoleum.”
Well, they treat us that way; internally we rarely see each other, and rarely do we work as a team outside of our formal meetings. You don’t walk to your colleague’s office and try to decide something informally. I will probably see more of you this week than I will see of my colleagues. We work quite independently.
Finally, it is a far more collegial environment than the rest of Washington. I sit in between Justices Ginsburg and Souter at our conferences. I sit between Justices Kennedy and Breyer on the bench. Now you can add up the times that we agree, yet never in nine terms has one unkind word been spoken at that conference room, and there have been days when many of us have been seething about one opinion or another. But the Constitution and what we’re doing, I think, is sufficiently important that we don’t let our emotions override the ability to make the best decision, that we don’t demean the process because we can’t control ourselves, that we don’t throw a temper tantrum in the inner sanctum of the Supreme Court where the document that pulls us together is being interpreted.
Now I know most of us in this room have flown at one time or another. Imagine, you’re boarding an airplane, you look to your left, and you see the pilot, the co-pilot and whoever else sits in there, you see all those instruments and dials, and you realize that they’re engaged in a heated debate. The pilot is calling the co-pilot names. They’re talking about their various lineage and things like that. They’re using foul language.
Would you strap on your seatbelt and take off with them? Would you, if you were undergoing surgery and you heard the anesthesiologist and the surgeon in a raging debate, name-calling, hatred, animosity, would you let them put you under and then use sharp instruments on you? Well, I dare say you would see the light and depart. But you look at your Constitution, isn’t it as important as a plane full of people. Isn’t your country that important? Or the surgery of one person? I dare say it is.
At any rate, from time to time I’m asked by people who visit with me or I see in an airport or around Washington — I think because of the difficulty of the confirmation — “Would you do it again? Knowing what you know today, would you do it again?” And the answer is obviously and unequivocally, yes! Now the reason for that has nothing to do with career. There’s no money in this. There’s a total loss of anonymity. My hair in 10 short years has gone from black to gray, what’s left of it. There is no place, I think, in the job that I do for ego. It’s your Constitution as much as it’s mine.
Justice Powell, who was a wonderful, wonderful man, elegant man, he would always pull me aside and say, “Clarence we’re the only two Southerners on the Court.” I always found that interesting, and I would tell him, “But Justice, you’re from the Upper South — I’m from the Deep South.” He said something to me years ago, he said that “each day you walk up to that Court and you look at it and you wonder: how? It’s only by the grace of God, and it was an opportunity to do good.” He said that no day could you walk to that building and say, “I belong here!” but rather that you’ve been given the privilege to be there. No, it’s not a matter of ego. I am there and would do it all over again. Not for trivial reasons like ego or career but for much more important reasons.
I was unfortunate enough in January to have to bury my baby brother, and I’m sure that I’m not the only person in the room who’s gone through something like that. But I look there at this once healthy young man — who’d never had a day of illness in his life — who with one step in his Sunday morning jog, died. And I look at this spiritless body, and you begin to evaluate that life. Was it important what kind of car he drove? How much money he made? Where he lived? No. What was important was much bigger than that — a good father, a good brother, a good man.
So, too, it is about our Constitution. It’s more than about who writes the fanciest language or has the illusions to Greek mythology or has the most wonderful Latin phrases or who turns the cutest phrases. I don’t like that kind of analysis. It isn’t about that. It’s about a document that holds us together, that governs us, and it is for that reason that I would do it again.
I shed no blood for this country. I dodged no bullets. I didn’t storm Omaha Beach. I wasn’t in Korea or Vietnam. I did nothing to defend the document we rely on. Now how could I say that I wouldn’t sustain or endure this minor inconvenience to defend that document and interpret it. I think that would be an act of pure cowardice.
We have, in my humble opinion, an obligation to be committed to that document. In the time that I’ve been on the Court, I have become increasingly idealistic. I have become enormously protective of the Constitution and passionate about it. That’s why these long dissents in Lopez, on the Commerce Clause, on federalism. That’s why the long detailed analysis—because it is so important. If we are to be a nation governed by consent—why are we governed by consent? Why do we argue about federalism or separation of powers? Because it is the way that the framers set us up to preserve individual liberty.
Now I ask you, rhetorically, the other side, where has individual liberty existed or coexisted compatibly with large central government? It’s up to you to answer that. The framers gave us limited national government—government by consent, government that preserves that inherent liberty that we have. That’s why all those debates become important, and I am indeed passionate about it. Because but for that—but for that document, which is nothing more than that thickness, a veneer almost—this stands between us and a deprivation of liberty. That document. And indeed we must be passionate if we build warships and planes and bombs, and we build militaries to protect it. Why can’t we feel passionate about it? It’s not academic. It’s not something to debate simply in civics classes. It’s not something to be debated from here [the neck] up. It is something to be debated from the heart up. And I thank you all.
Well I think I’ve gone too long, and you’ve been overly generous, but I’d like to, for those that don’t mind staying, to answer some questions that are asked.
Question: Did you ever doubt you would be confirmed by the Senate?
Justice Thomas: I don’t know why Pat asked me this. This will sound rather odd, but in my entire life I’ve been in very, very difficult straits from one time or another with very difficult forks in the road that I will not go through. My rule was very simple: that God has never put me in a position that He wasn’t going to get me out of.
Question: What are your thoughts on the need for “hate crime” laws, when we already have laws against violence? Why does the motivation for the violence matter in a court of law?
Justice Thomas: I can’t answer that because I really don’t know, and I’m certain that at some point those laws will come to us in a different context. I think that’s going to be an important area of litigation in the future.
Question: What is your opinion of the quality of legal education today?
Justice Thomas: Oh, have you looked at some of the catalogs of your top law schools? I’d simply tell you this: get a catalog from your alma mater. I don’t know where you went to college or law school. Read the courses, and you answer that yourselves. I think you are in for some big surprises.
I was reading the school newspaper – I’m from the Catholic College of the Holy Cross in Worcester, Massachusetts. There’s some of us that feel pretty strongly about it. But I noticed in the school paper one day that they had a course on black theology, and I wanted to know what that was since it was a Catholic school. But, I think it is very important for people to look at their alma mater just as you look at your local government and ask questions. There are some enormously interesting courses. I don’t routinely read law reviews, simply because most of them are worthy only of trash cans, and I don’t allow them in my office.
Question: Frivolous lawsuits are consuming a disproportionate fraction of our GNP, 10 times that of Japan. Our system of jurisprudence is behind all other advances. What can be done, how can the populace help?
Justice Thomas: I think the populace are the ones bringing the lawsuits.
There’s one thing I learned in this business – it’s that lawyers need clients. You notice people are suing because their kids didn’t get a B in the third grade and all that kind of silliness. I don’t know what to do. But I say this, with all the faults, all the litigation, the rest, we are still the envy of the world.
Question: I’m not going to name this politician, but a politician says the Constitution is a living, changing document. Your thoughts please.
Justice Thomas: Well let me see, you can see [holding up a copy of the Constitution] ... his may be living and breathing, but mine’s inanimate.
Question: Who is your model of a great historical Supreme Court Justice? And what are your thoughts on my favorite Justice, John Marshall?
Justice Thomas: Oh, I think John Marshall did us all a great service, and all you have to do is read his biography to see that. I think, though, that my favorite would have to be the first Justice Harlan, simply because of his dissent in Plessy vs. Ferguson. I think that in the 1890s for him to stand up and say what we all believe today, and to sit there alone against everything — he came from a slave state, his family owned slaves, and he stood for principle. He was the least likely person to do that, and I think that takes guts.
We have allowed ourselves to be talked into this notion that there’s something mysterious in here [holding up a copy of the Constitution] that only certain people with certain IQs and certain kinds of education can discern. This is a simple document. Read it. It may take a little work to get some of the meaning, but there’s nothing elusive in this document. This is ours. We shouldn’t assume that it takes somebody with a 250 IQ to figure this out. People with common sense wrote this, and people with common sense should be able to interpret it. So I would just simply say that don’t be deceived into thinking that you have to pick someone with the highest IQ in the world as your model.
Question: This is a question important to Oklahomans. With the current movement to enact new laws governing firearms and handguns, could you elaborate on your interpretation of the founders’ intent of the Second Amendment – the right to bear arms?
Justice Thomas: Now I know that was a set-up. I’ve mentioned the Second Amendment in an opinion some years ago—I think it was the Brady Act case, I can’t remember which one right now—simply because it had not been mentioned and it seems to be anathema to mention that Amendment. It didn’t decide the case, but simply to point out that there is a Second Amendment, and I don’t know what the outcome would be, but it does exist. You don’t go from 1st to 4th, you go 1, 2 ... It’s there.
But there are some things, some portions of our Constitution, that are not considered important enough to mention. There are certain Amendments that are inconvenient. I don’t know what the outcome on that would be, and I’m sure that will get to us. But I don’t think that we should pick and choose the provisions in the Constitution that we will uphold and the provisions we won’t.
Question: What has been the most difficult case to rule on as a Supreme Court Justice?
Justice Thomas: Well, let me answer that in this way. I think that there are cases that are analytically difficult. There are cases – if you look at the case that we had on term limits, that one is just a lot of digging and finding answers. Some of the tax cases or pension cases can be difficult – the statutes are difficult to work with. Ask any ERISA or tax lawyers — I mean, they’re in a world of their own, you know. If we’re in a mausoleum, I don’t know, they’re off in a corner some place, but it’s just very, very difficult analytically to work out. That’s more like a puzzle, so it’s challenging.
The hard case is the case where your heart really wants to do something for someone and the law says you have no authority. That’s when you see whether or not you are a judge, or you’re lawless.
Monday, September 24, 2007
Oklahoma Council of Public Affairs 2000 Annual Dinner
Here is that speech, which was followed by an interesting Q&A session: