♪♪

>> 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.

♪♪

♪♪

♪♪