(Originally published on David Rivkin’s Facebook page, October 29, 2010)
Clarence Thomas leaps from his chair. He retrieves a wire coat hanger from his closet for a demonstration — the same demonstration he gives his law clerks. He bends it and says: “How do you compensate? So, you say well, deal with it. Bend this over here. Oh, wait a minute, bend it a little bit there. And you’re saying that it throws everything out of whack. What do you do?”
He holds up a twisted wire, useless now for its original purpose and the point is made. “If you notice sometimes I will write just to point out that I think that we’ve gone down a track that’s going to cause some distortion, then it’s quite precisely because of that. I don’t do things that I think are illegitimate in other areas, just to bend it back to compensate for what’s already happened.”
So is the most controversial Supreme Court justice an “originalist” when it comes to Constitutional interpretation? He says he doesn’t like labels, though he does admit to being a “meat and potatoes” kind of guy.
Upon entering his spacious office overlooking the Capitol Dome in Washington, D.C., the first thing to catch your eye is his Nebraska Cornhuskers screen saver. Mr. Thomas never attended the University of Nebraska, or even lived in the state. He’s just a fan. His office is also decorated with pictures of the historical figures he admires, Frederick Douglass, Abraham Lincoln, Booker T. Washington, Thomas More and Winston Churchill, and he speaks of them with knowledge and passion. Watching over all is a bust of his grandfather atop Mr. Thomas’s bookcase — its countenance as stern as a Roman consul. There is little doubt this man was the driving force in Mr. Thomas’s life — a fact he confirms, and which is reflected in the title of his recently published memoir, “My Grandfather’s Son.”
Mr. Thomas faced one of the most destructive and personally vicious Supreme Court confirmation hearings in American history — described at the time by Mr. Thomas himself as a “high-tech lynching.” Mr. Thomas’s opponents smeared his character and integrity. To this day, disappointed and embittered, they feel entitled to insult his qualifications, intelligence and record.
In 2004, when Mr. Thomas’s name was floated as a possible replacement for ailing Chief Justice William Rehnquist, then Senate Minority Leader Harry Reid called him an “embarrassment” to the Court, and attacked his opinions as “poorly written.”
In point of fact, Mr. Thomas’s opinions are well-written, displaying a distinctive style — a sure sign that the Justice and not his clerks does most of the writing.
As for his judicial philosophy, “I don’t put myself in a category. Maybe I am labeled as an originalist or something, but it’s not my constitution to play around with. Let’s just start with that. We’re citizens. It’s our country, it’s our constitution. I don’t feel I have any particular right to put my gloss on your constitution. My job is simply to interpret it.”
In that process, the first place to look is the document itself. “And when I can’t find something in that document or in the tradition or history around that document, then I am getting on dangerous ground. Because that’s when you drift so much more towards your own policy preferences.”
It is the insertion of those policy preferences into the interpretive process that Mr. Thomas finds particularly illegitimate. “People can say you are an originalist, I just think that we should interpret the Constitution as it’s drafted, not as we would have drafted it.”
Mr. Thomas acknowledges that discerning a two-hundred-year-old document’s meaning is not always easy. Mistakes are possible, if not inevitable, as advocates of a malleable “living constitution,” subject to endless judicial revision, never tire of pointing out. “Of course it’s flawed” agrees Mr. Thomas, “but all interpretive models are flawed.”
Simply following your own preferences is both flawed and illegitimate, he says. “But if that is difficult, does that difficulty legitimate just simply watching your own preference?” By doing that “I haven’t cleared up the problem, I’ve simply trumped it with my personal preferences.”
Mr. Thomas has also been criticized for his supposed lack of respect for precedent. Even his fellow conservative, Justice Antonin Scalia, was reported by a Thomas biographer to have claimed that Mr. Thomas just doesn’t believe in “stare decisis.” Latin for “let the decision stand,” stare decisis is an important aspect of the Anglo-American system of precedent — deciding new cases based on what the courts have done before and leaving long established rules in place.
Mr. Thomas, however, is less absolute here than his critics suggest. He understands the Supreme Court can’t simply erase decades, or even centuries, of precedent — “you can’t do it.”
At the same time, he views precedent with respect, not veneration. “You have people who will just constantly point out stare decisis, stare decisis, stare decisis . . . then it is one big ratchet. It is something that you wrestle with.” History would seem to vindicate Mr. Thomas and his insistence on “getting it right” — even if that does mean questioning precedent.
The perfect example is Brown v. Board of Education (1954), where the Supreme Court overruled the racist “separate but equal” rule of Plessy v. Ferguson (1896), which permitted legally enforced segregation and had been settled precedent for nearly 60 years.
It is the Plessy dissent of Justice John Marshall Harlan to which Mr. Thomas points for an example of a Justice putting his personal predilections aside to keep faith with the Constitution. Harlan was a Kentucky aristocrat and former slaveowner, although he was also a Unionist who fought for the North during the Civil War. A man of his time, he believed in white superiority, if not supremacy, and wrote in Plessy that the “white race” would continue to be dominant in the United States “in prestige, in achievements, in education, in wealth and in power . . . for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty.”
“But,” Harlan continued, “in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among its citizens.”
That, for Mr. Thomas, is the “great ‘But,'” where Harlan’s intellectual honesty trumped his personal prejudice, causing Mr. Thomas to describe Harlan as his favorite justice and even a role model. For both of them, justice is truly blind to everything but the law.
More than anything else, this explains Mr. Thomas’s own understanding of his job — a determination to put “a firewall between my personal view and the way that I interpret the Constitution,” and to vindicate his oath “that I will administer justice without respect to person, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all of the duties incumbent upon me as an Associate Justice of the Supreme Court of the United States.”
This insistence by the Justice on judging based upon the law, and not on who the parties are, presents a stark contrast with today’s liberal orthodoxy. The liberal approach — which confuses law-driven judging with compassion-driven politics, enthused with a heavy distrust of the American political system’s fairness — was recently articulated by Democratic presidential candidate Barack Obama, who emphasized the need for judges with “heart” and “empathy” for the less fortunate, judges willing to favor the disempowered.
Born in rural Georgia in 1948, Mr. Thomas and his brother were mostly raised in Savannah by their maternal grandparents. His grandfather, Myers Anderson, believed in work, and that rights come with responsibilities. According to his book, Mr. Anderson told the seven-year-old Clarence that “the damn vacation is over” the morning he moved in.
Says Mr. Thomas: “Being willing to accept responsibility, that sort of dark side of freedom, first — before you accept all the benefits. Being ready to be responsible for yourself — you want to be independent. That was my grandfather.” Anderson also taught his grandson to arrive at his conclusions honestly and not “to be bullied away from opinions that I think are legitimate. You know, not being unreasonable, but not being bullied away.”
For a man who has been subjected to a great deal of vitriol, Mr. Thomas manifests remarkable serenity. He rejoices in life outside the Court, regaling us with stories about his travels throughout the U.S., his many encounters with ordinary Americans, and his love of sports — especially the Cornhuskers, the Dallas Cowboys and Nascar.
Mr. Thomas isn’t much bothered by his critics. “I can’t answer the cynics and the negative people. I can’t answer them because they can always be cynical about something.”
Mr. Thomas speaks movingly about the Court as an institution, and about his colleagues, both past and present. He sees them all, despite their differences, as honorable, each possessing a distinctive voice, and trying to do right as they see it. Our job, he concludes, is “to do it right. It’s no more than that. We can talk about methodology. It’s merely a methodology. It’s not a religion. It is in the approach to doing the job right. And at bottom what it comes to, is to choose to interpret this document as carefully and as accurately and as legitimately as I can, versus inflicting my personal opinion or imposing my personal opinion on the rest of the country.”
And why doesn’t he ask questions at oral argument, a question oft-posed by critics insinuating that he is intellectually lazy or worse? Mr. Thomas chuckles wryly and observes that oral advocacy was much more important in the Court’s early days. Today, cases are thoroughly briefed by the time they reach the Supreme Court, and there is just too little time to have a meaningful conversation with the lawyers. “This is my 17th term and I haven’t found it necessary to ask a bunch of questions. I would be doing it to satisfy other people, not to do my job. Most of the answers are in the briefs. This isn’t Perry Mason.”