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Clarence Thomas: A Discussion
Jack Ford leads a discussion about the record and influence of Supreme Court Justice Clarence Thomas. Leah Ward Sears, Former Chief Justice, Georgia Supreme Court; Melissa Murray, Professor of Law, New York University; and Raymond M. Brown, Trial Attorney are the legal scholars and commentators that join Ford to assess the impact of almost 30 years that Justice Thomas has sat on the Supreme Court.
TRANSCRIPT
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>> Welcome to "Clarence Thomas:
A Discussion."
I'm Jack Ford.
Many of us know of
Justice Clarence Thomas,
but we may not know much about
Justice Clarence Thomas.
Now, if you watched
the documentary "Created Equal:
Clarence Thomas In His Own
Words," you learned about his
journey from the depths of
poverty through the contentious
confirmation hearings
and ultimately to the pinnacle
of the legal profession, a seat
on the U.S. Supreme Court.
What we hope to do tonight
is add to that story, to examine
who he has become as a justice
in his nearly 30 years
on the bench, to examine
his judicial philosophies,
the ones that he has championed,
and then to look at his impact
on the court and on the nation.
Joining us to contribute
to that conversation,
we are delighted to have first
former chief justice
of the Georgia Supreme Court,
Leah Ward Sears,
Professor Melissa Murray,
a law professor at the NYU
Law School, and Raymond Brown,
a nationally recognized trial
attorney, lecturer and teacher.
So welcome.
I want to start with
what appears to be a paradox
that surrounds Justice Thomas.
And that paradox is,
on the one hand,
we know he is famously silent,
rarely if ever, asking questions
during oral arguments.
On the other hand,
he is arguably the most
prolific writer on the court,
not just majority opinions,
but concurring opinions
and perhaps most interesting,
his dissenting opinions.
Justice Sears, let me ask you
first for two reasons.
One, because you have
presided over a high court
in the state of Georgia.
And secondly, because you know
Justice Clarence Thomas
very well.
What do you make of this
silence that he has exhibited
over the years?
>> I don't make much of it.
I don't really see it
as a paradox.
I have heard him say
two things about
the reasons he chooses
to stay silent on the court.
The first is
the language problem
he might have had growing up,
hearing that Geechee accent
that you hear a lot
among African-Americans
who came over from West Africa,
who stayed in the Barrier
Islands section of Sudan,
and it's a very, very hard
dialect to decipher.
I think he can understand it
and he can speak it.
And of course, he doesn't
speak it now.
And, of course, the other thing
I've heard him say
is that there's too much chatter
on the bench.
I think he thinks -- I can't be
sure, of course -- that the
justices are actually taking
over the litigation.
And I think he would prefer to
listen to what they have to say
and then write about it.
>> It seems to me that looking
at how often the Justice
speaks is kind of
a dysfunctional parlor game with
maybe a little racialist tinge.
I should start by saying
I disagree with Justice Thomas
on almost everything he's ever
done, said, or written.
That said,
some of this undergirds
a kind of unfortunate notion.
Even though I disagree
with Thomas, I'm not inclined
to buy into the notion
that he's not a very facile and
intellectually gifted person.
I think some of the subtext
around his silence is somehow
he's stupid or limited
or intimidated by the role.
I think that's an unfair subtext
and takes away from looking
at his ideology, his opinions
and his jurisprudence,
which I think are worthy
of study and even criticism.
But I think the other
is kind of a parlor game
that doesn't service very well.
>> Let me ask --
>> What's wrong with a judge
that listens?
>> Yeah, Justice, let me ask
this, if I can.
How impactful really is
the oral argument
on the resolution of a case?
>> Very little. Very little.
The work of a high court
is done on the whole,
on paper, on briefs.
I know it's what
everyone likes to see.
It's the circus
that everyone can get in on.
But that's not where
the decisions are really made.
>> Professor Murray,
let me ask you this.
Justice Sears said one of the
things that Justice Thomas has
said is that he wants to allow
the advocates to advocate.
So my question to you,
Professor Murray,
as a professor, as a lawyer,
somebody I should mention,
who clerked for then-Judge,
now Justice Sotomayor,
so you've seen sort of
both sides of this.
What about that notion
that as a lawyer and again,
I sort of weigh in in my earlier
career as a trial lawyer,
I really liked it when judges
or justices
let me make my pitch.
What do you think about that,
Professor Murray,
about him saying let's let
the advocates advocate?
>> I think it's a great point
and one that I think he takes
quite seriously as advocates
are going before
the United States Supreme Court.
They've spent a lot of time
with these cases, a lot of time
preparing for this moment.
And it's hard
when you have a hot bench that's
sort of talking over each other
and talking over you, the
advocate.
I've also heard
that Justice Thomas refrains
from asking questions
at oral argument
because he wants to give
the advocates an opportunity.
I would push back, though,
on the idea that oral arguments
are mostly
performative for the lawyers.
I actually do think
they serve a role,
especially on
a multi-member court.
It's often hearing
from your colleagues,
hearing the questions that
your colleagues ask,
that you get a sense of what
they're concerned with,
where they're having trouble.
And oral argument, I think,
can actually help shape the way
an opinion comes together
or whether people peel off
into dissents or concurrences.
But Justice Sears
is exactly right.
At the margins,
it doesn't really matter much
for the outcome, although it may
shape the deliberative process.
But I think
Justice Thomas believes,
and I think rightly so,
that the work that he can do in
shaping the deliberative process
can be done as easily
in conference
with his colleagues
outside of the public eye
rather than in the heat
of oral argument.
>> Mr. Brown,
let me come back to you,
and you touched on the
optics, if you will,
of Justice Thomas
not asking questions.
Seen all sorts of theories.
One was you mentioned people
suggesting that it shows
that he was not quite
smart enough to be on the bench.
We know that that's what
some people said when he was
nominated in the first place.
What do you think about this?
>> Wherever you come out on
Justice Thomas, he is a living
symbol of the centuries-long
discourse in America
about race injustice.
And I think some of that
involves the very notion
of black inferiority,
or lack of confidence,
lack of capacity to contribute
to our intellectual discourse.
And I think even though
I opposed the justice, and
on this issue,
by the way, I'm talking against
my professional interest.
I like a hot bench because it
tells you who the judges are.
But at the end of the day,
some of the subtext
about his apparent
or alleged apprenticeship
to Justice Scalia,
which wasn't true,
and also his silence
has the tinge of saying somehow
he wasn't equal to the task.
Intellectually,
he's quite capable.
But I think there is
a suppressed kind of attack
on him as inadequate to the task
because of his African ancestry.
>> To be clear, he's not
the only justice who has fallen
to that kind of criticism.
Justice Thurgood Marshall, who
was the first African-American
to sit on the court,
the person
who Justice Thomas replaced,
he famously was derided
as someone by a Harvard
law professor, Archibald Cox.
Archibald Cox said that
Justice Marshall
wasn't really a big thinker.
He said he was intellectually
lazy and that he had
the great fortune
and deserved the credit
for picking really able clerks,
but that the clerks really did
a lot of the work,
and that's some of the same
criticism that Justice Thomas
has fallen into over the years.
>> And interesting additional
fact is that Justice Marshall
did not ask very many questions
either.
Nor did Justice Brennan,
who was on the court with him,
who was one of the lions
of the liberal wing.
>> Jack, to further mind the
the gravamen of your question,
I think it's also important to
note he was ill-served
by the first President Bush
who proclaimed him the most
qualified man in the country
to go on the court.
Now, everybody who's an observer
of the court and of
jurisprudence knew that was
nonsense, standard political
rhetoric, but nonsense.
So if you elevate a man
to the intellectual apex
of a court whose job
is not error correction,
but to set jurisprudential
policy, essentially for the
country, then he's going to be
examined with microscopic
scrutiny.
And if you add to that
the crucible of race,
it's not surprising that he is
the focal point of such critique
because he was far from the most
qualified person in the country.
>> But who is
the "most qualified person"?
>> Oh, you would've been.
>> Come on.
>> Had you been nominated.
>> There is no most qualified
person.
>> But it was President Bush --
>> He's no different than
anybody else -- these last few
people were the most qualified
people.
>> Oh, of course not.
But I'm simply --
Well, it's standard political
rhetoric when you attach
that label to an otherwise
controversial black man.
You get the level of scrutiny,
some of it much unfair.
But if you had been nominated
and they said
you're most qualified person,
I would have applauded.
>> Well, that would
have been wrong, but thank you.
>> Professor Murray, let me talk
now about the writings, alright?
Because we mentioned
extraordinarily prolific
in his writings.
What do you make of that?
>> In terms of his writing,
he is more than happy
to go it alone.
He often joins the majority
opinion when there is a
conservative majority or he will
join the dissent when
there's conservative dissent.
But he's also as comfortable
to write his own writings.
And when he does, it is often
to bring up a point that others
do not necessarily agree with.
Justice Scalia famously said,
"I'm an originalist,
but I'm not a nut."
And he was referring
to Justice Thomas,
who really is kind of
the original originalist
who was willing to take
the tenets of originalism,
this idea that we should
interpret the Constitution
in line
with what the intent of the
drafters or the ratifiers were.
He would actually take it
to what would be
a quite extreme view.
And so he's often willing
to take those positions
in his writings.
In one writing, though,
that I won't forget --
it was actually an incredible
concurrence in McDonald
versus the city of Chicago.
He used that opportunity to
highlight the racial dimensions
of the right to bear arms
and the Second Amendment.
And he noted that one
of the cases that was at issue,
a precedent called Cruikshank,
really dealt with the
large-scale massacre
of an African-American community
by basically white
supremacists during
the Reconstruction period.
And he notes that
what would have saved
those African-Americans
who were slaughtered in that
massacre was
the opportunity to bear arms.
And he really linked
Second Amendment gun ownership
to the idea of
African-American independence,
not only from government,
but also from white violence.
>> You get us sort of nicely
into this next category
that I want to talk about,
and that is his judicial
philosophy.
Professor Murray, you gave us a
definition of originalism, if
you will.
Just give us the opposite.
What are those who are
not willing to accept
the notion of we decide based
upon what the framers had in
mind back
when they put this together?
What's the the flip side
argument, the position that
people take?
>> Well, on that front,
Justice Marshall,
who was Justice Thomas'
predecessor on the court,
is probably the best example.
Justice Marshall very much
believed in what is known
as living constitutionalism
or pragmatism, the
idea that constitutional text
should evolve in our
interpretation of constitutional
text should evolve to meet
the exigencies of modernity
and contemporary problems.
The Constitution that
the drafters and ratifiers
dealt with in 1787
could not anticipate
or even contemplate
the problems we deal with today.
And so the Constitution
has to continue evolving.
That is not a view
that an originalist like
Justice Thomas would take.
He very much believes
that there are two important
founding moments -- 1787,
when the Constitution
was written, and then
the post-Reconstruction moment
where the Reconstruction
amendments
were drafted and ratified.
And those two moments and
understanding the original
intent of the Reconstruction
amendments in 1868
and the Constitution in 1787
are the only sort of time
periods that are relevant
and that matter.
And it's a very different
philosophy.
Under Justice Thomas' view,
originalism restrains judges,
keeps them from imposing
their own beliefs into the law,
whereas living constitutionalism
gives them wide range to impose
their own policy preferences.
But many view originalism
as a kind of activism itself,
that it can actually be
interpreted
and taken to quite extreme views
that perhaps even
the ratifiers or the drafters
would not have contemplated.
>> He's probably been as
committed a theoretician
as anybody who's been
on the court in my lifetime
in terms of being committed,
this philosophy
even well beyond Justice Scalia.
But I also think the touchstone
is going to be his willingness
to embrace the use of race
in terms of remedies for
problems that relate to race.
>> Right.
>> Well, to be clear, he is not
a traditional conservative, even
as he adheres to originalism.
He's not a Burkean conservative.
He may believe in limited
government and deregulation,
but he's not a colorblind
constitutionalist,
which is sort of a
touchstone of
traditional conservatism.
He very much believes that race
is important and he's almost as
preoccupied with race as someone
like Justice Marshall was, just
with very different outcomes.
>> I disagree because I think
his use of race has been very
much tied to Justice Harlan's
dissent in Plessy.
That is
a colorblind constitution.
In 2000, when Justice Marshall
gave a bicentennial speech,
talking about us
really having two republics,
a post-Reconstruction republic
with wartime amendments,
Clarence Thomas
harshly criticized him
as savaging the Constitution
because it moved away from
a reverence for the founders.
And I think to that extent,
and to the extent
that in race cases,
he has shied away and in fact
rejected the use of race
precisely because
of this philosophy that he has.
And I think he would --
he is not blind to race,
but his unwillingness
to employ race
in a way that involves what at
least progressives would argue
are ways of tackling social
problems through jurisprudence,
is abetted by this notion that
if you have a narrow, cramped
view of stare decisis and
a cramped view of the
originalists' intent.
>> Justice Thomas, in my view,
is very cognizant of race,
very aware of race.
He understands the race issue
upon which this country was
founded.
He just comes to different
conclusions sometimes that
most people don't understand.
>> I think it's easy to
understand him and still be
critical of him.
I understand him pretty well.
>> To be clear,
I am not a Clarence Thomas
apologist on any of this,
but I think Justice Sears
is exactly right.
You can be preoccupied
with race,
but not necessarily believe
that it leads you
to a particular outcome.
And this is a man
who has no problem
talking about Emmett Till
in a concurrence or the Knights
of the White Camellia
or the Ku Klux Klan,
or talking about what it means
to be an African-American and
see a burning cross on your
lawn.
He's completely preoccupied
with race because it has
completely shaped his life.
He just doesn't get
to the same outcome.
>> You're creating a --
I don't disagree that he's
preoccupied with race.
I'm saying his use
and his understanding of race --
For example, if you take
Flowers, which is a recent --
>> You just said he believes in
this Harlan colorblind
constitutionalism.
That is not true.
>> But he has advocated and
quoted Harlan on many occasions.
>> Let me jump in
for one second here.
He has not embraced the notion
of affirmative action.
And yet people that know him
will tell you he is passionate
about uplifting the black
community and individuals
within the black community,
that personally he reaches out.
He does things
that are never publicized,
but he is passionate about it.
And he has raised the question
of why is he expected,
because he is a black man,
to think a certain way?
Is that a valid concern
that he raises, do you think,
Justice Sears?
>> Yeah, I think that is a valid
concern.
Justice Thomas
and I are friends,
but we do not share
the same judicial philosophy.
Nevertheless, I've always
thought of him as sort of
the ultimate free black man.
He thinks the way
he chooses to think.
And everyone else be damned.
I wouldn't come to the same
conclusions on most of
the decisions that he makes,
but I do admire him for thinking
the way he wants to think versus
the way he thinks everyone else
wants him to think or expects
him to think.
>> Of course he's free
to think as he wishes to think.
But I'm saying when you're on
a court and part of the reason
that you're on the court
was you were chosen
because you were black to take
a seat of another black justice,
and when, coming
from Pin Point, Georgia,
it isn't possible
to ignore race
and nobody suggests you have,
that you are set in opposition
to what has been the majority
view of the community in terms
of civil rights remedies
and you stand in opposition of
that, you can expect criticism,
and to narrow it down to saying
because you're black, you have
to think like everybody else is
to oversimplify the question
that was raised by
Judge Higginbotham in 1991.
when he wrote an open letter
to Clarence Thomas and said,
"Please don't forget
how you got to where you are."
>> Let me just say this.
He's never, ever forgotten
where he comes from.
That's part of who he is
and that's part of the reason
he thinks as he does.
Now, I don't understand it, but
It's the truth.
>> Let me shift our focus
a little bit here and for this,
Professor Murray,
let me come to you again.
We mentioned the term stare
decisis.
What does it mean?
>> Stare decisis comes from the
Latin "Let the decision stand."
And the idea is one that is sort
of bedrock in the Anglo-American
legal tradition that we build
upon settled decisions.
We don't revisit
or disturb a decision
that's already been made.
And so in the Anglo-American
tradition, the real sort of
question has been
if you want to evolve the law,
you have to do it
incrementally over time,
building and distinguishing
past cases as opposed
to simply breaking from them.
Justice Thomas has been one of
the few justices on the court
who has really kind of developed
his own theory of stare decisis,
but it's a theory that
at one time seemed off the wall
and is now seeming to gain
some traction among the
conservative wing of the court.
But in his view, because
the Supreme Court is not
a truly common-law court that
exists in a vacuum by itself,
but rather is part of a system
of divided government
where you have legislatures
that create laws and executives
that interpret or execute
or make their own policies,
the court itself
isn't the only source of law.
We have these other sources.
And so, with that in mind,
he really believes
that an Article 3 court
has no inexorable command
to stare decisis
but rather has an obligation
to break from a past decision
if it is what he says
is demonstrably erroneous.
Now, the question of what
constitutes a decision
that was demonstrably erroneous
is really up for grabs.
To your point
about affirmative action,
I think he would say
that the court's decisions
in Grutter vs. Bollinger, that
was the 2003 University of
Michigan Law School affirmative
action case, was demonstrably
erroneous, and is something
that we should break from.
But again,
I go back to Justice Sears.
I don't think his problems
with affirmative action
are solely about
a disagreement on the precedent,
but rather because he believes
that the diversity rationale
that has been used to uphold
affirmative action is really
about serving
and servicing white students
and not really about advancing
black and Latino students
or Asian-American students
in the process.
I mean, it is a kind of
interesting point of view
for a conservative and one
that is not taken by his
conservative colleagues on the
court who opposed the decision,
Grutter, but not for
the same reasons that I think
he has a problem with it.
>> What is the value, Mr. Brown,
to you as a practicing lawyer?
What then is the value
of embracing
this doctrine of stare decisis?
>> Let me give you a value as it
relates to ordinary people.
Many people remember in 1966,
United States Supreme Court
decided Miranda vs. Arizona
about the Miranda rights.
Everybody knows about Miranda
rights.
In 2000, the court revisited
that, and Justice Rehnquist
would have opposed Miranda
when it was decided said,
"This idea of Miranda
is so deeply embedded in
our political and legal culture
that I wouldn't change it."
That's an example
of stare decisis,
where for policy reasons,
judicial policy,
you put something in place,
even though you might not have
made the decision the same way.
And another flag here is
Planned Parenthood,
which has many people concerned
about Roe v. Wade, upset
because the question is,
would you now use Roe v.
Wade, a 1973 decision
as stare decisis
when abortion or right to life
comes before the court again?
So this is a living idea.
It seems like complex
interpretive methodology,
but it has to do with whether
you follow precedents
and what are the reasons
for doing it and not doing it.
>> You know, you don't want
a law one day, A, and then the
next day the law is B.
You know, you get a new judge,
and so it's gonna be a new day.
The laws have to be consistent
for people to have trust
and confidence in the system.
>> What about this question
here?
He has said that -- his words --
"When faced with a demonstrably
erroneous precedent,
my rule is simple.
We should not follow it."
Professor, what do you think?
>> I think that's a
fundamentally different prospect
when you're dealing with a
document like the Constitution.
A lot of these terms are not
fixed by nature.
What does due process mean?
What is cruel
and unusual punishment?
What does equal protection
really include?
And so for that reason,
you rely on interpretation.
And in a multi-member court like
the United States Supreme Court,
you may have disagreements.
I mean, they reached consensus.
And the idea behind stare
decisis is that once you've
actually decided that issue
in the first instance,
you're supposed to build on that
and develop it,
but not necessarily break
from it just because
there is a new --
the court is constituted
differently or you change
your mind about something.
There are very limited
circumstances
in which you are supposed
to abandon a past precedent.
So, for example,
if it's proven unworkable,
if there are factual bases
that are no longer true
that you've recently discovered,
that can make you go back
and change your mind
about a past precedent.
But the very legitimacy of the
court and the legal system
depends on the reliability
and predictability
of these decisions.
And that's why so many people
really stood up and took notice
when Justice Thomas last year
in that Gamble concurrence said
that not only did the court
have no duty to follow
stare decisis when they believe
that a past decision
was demonstrably erroneous,
they actually had an affirmative
obligation to step in
and correct it.
He very much has been, I think,
the true midwife
of a very extreme form
of originalism on the court.
But I think because he's not
viewed as a towering intellect,
we really do not appreciate
the degree to which he has
really shepherded the right even
further right than it was under
Justice Scalia's watch.
So he's really pushed
a lot of this and probably
hasn't received the credit
for being an intellectual force
that he has been.
>> I'll break it down
a little more simply,
The reason he's not viewed
as a towering intellect
is because he's a black man
and not a white man.
Period.
>> Let me ask you all
the same question,
and that is this.
Clearly Justice Thomas'
legacy has not been
completely written yet.
He has said he is healthy,
he enjoys his work,
and he intends to stay on
the bench for as long as he can.
But up till now,
what would you offer
as a fairly succinct statement
of what Justice Thomas' legacy
has been as a justice here
on the Supreme Court?
Justice Sears, let me ask
you first, if I might.
>> Very, very conservative, a
free thinker.
Definitely interested
in the African-American
experience in this country
and not really
well-understood yet.
And I think -- I hope
that over the course of years
he will be better understood.
But I think it's going
to take some time.
>> I think it will take time.
He's very complex.
A black justice
who is conservative
with, some have suggested,
even nationalist leanings.
For me, I can't separate
my profound disagreement
with his pernicious positions,
but I do think he is also
undermined by the fact
this society still doesn't
accept intellectual capacity
when it comes from the soul
of a black person.
>> And Professor Murray.
>> I agree with
all of those assessments.
I think going forward in time,
we will know
Justice Thomas to have been one
of the most profound discussants
of race on the court.
But his discussion of race
does not take you
to some of the places
that you might expect.
So in that sense,
I think his legacy will be
one as a really
conservative iconoclast
even among other conservatives.
>> Well, I said in the beginning
that we were going to gauge
in a discussion
that we would hope would
add to the story
of Justice Clarence Thomas,
and I think
you have all done that.
Our thanks then to
our guests this evening,
former Georgia state
Supreme Court Justice
Leah Ward Sears,
professor Melissa Murray
from the NYU School of Law,
and attorney and a good friend
for many years, Raymond Brown.
I'm Jack Ford.
Thanks for joining us tonight.
Stay safe.
Stay well and have a good night.
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