WASHINGTON — Supreme Court Justice Clarence Thomas offered a rare glimpse Wednesday at the Heritage Foundation into his 25 years of public service on the Court and the life of America’s longest-service African-American justice.
Sunday, Oct. 23, marked the 25th anniversary of Thomas’s confirmation as the 106th justice of the nation’s highest court. Heritage wanted to honor the conservative lion by asking him to give the Joseph Story Distinguished Lecture at one of the nation’s foremost think tanks.
This lecture is “one of Heritage’s most prestigious events” and part of its “Protect the Constitution Series,” explained Attorney General Ed Meese as he introduced Thomas to a packed room of scholars, lawyers, journalists, and guests.
Praising Thomas as “one of the clearest writers” on the Supreme Court, Meese lauded him as one of the finest public servants of his time, beginning with his service in the Reagan administration as assistant secretary of education for civil rights and later the chairman of the Equal Employment Opportunity Commission (EEOC), before being appointed to the federal appeals court by the first President Bush.
In a sit-down interview exchange with John Malcolm, director of the Edwin Meese III Center for Legal and Judicial Studies at the Heritage Foundation, Thomas said one of the most important aspects of his work is to put forth “the effort to have a consistent judicial philosophy” — that how a justice decides any issue of law should reflect the same approach he takes to the law in any other case during his years of service.
This can be a personal challenge when “your heart goes one way” in a difficult case but the law requires a different result, Thomas told the audience. The law should rest on neutral principles that generate predictable outcomes, creating a stable legal environment.
The 68-year old jurist criticized constitutional doctrines invented by the Supreme Court that are not found in the text, structure, or history of the Supreme Law of the Land, such as the “dormant Commerce Clause.”
While the Constitution gives Congress the authority to regulate interstate commerce, the Supreme Court long ago invented the idea that even when Congress does not pass a law, this constitutional provision somehow forbids states from adopting laws that the justices believe unduly burden interstate commerce, a concept that Thomas laughed off as a “hibernating bear.”
Thomas also reminisced about his good friend, the late Justice Antonin Scalia.
He recalled one day during oral argument at the Supreme Court, Scalia leaned over to comment that Auer v. Robbins — a case often criticized by conservatives, in which the Court held that when a government agency interprets ambiguous terms in its own regulations, courts should defer to such interpretations so long as they are reasonable — is one of the worst precedents in Supreme Court history
“But Nino,” Thomas responded, “You wrote it!”
Asked what part of his job he likes most, Thomas answered, “The thing that I enjoy the most are my law clerks,” calling them “fun” and praising the “energy” that they bring to his work.
Every year, each justice selects as law clerks for one year four lawyers who previously served as clerks for judges on federal appeals courts. Only the most brilliant lawyers are considered for these coveted positions.
Born in the Deep South, this native of Pin Point, Georgia, cited as a highlight of his tenure the day that a man came running up to him at Gettysburg asking Thomas to sign a copy of a Court opinion he had written. (The case was Federal Maritime Commission v. South Carolina State Ports Authority, concerning a state’s sovereign immunity from suit.) The breathless man told the justice, “I read all your opinions because I can understand them.”
That, Thomas said, is what he thinks the law should be all about, explaining that a judge should take the Constitution — or any law — and “make it accessible” to everyday Americans who must live under its authority.
“Genius is not putting a $2 idea in a $20 sentence,” he added. Instead, it’s “putting a $20 idea in a $2 sentence without losing its meaning.”
Thomas frequently visits Gettysburg, taking his law clerks there each year at the end of the Court’s term (which goes from October through June), to show them the incredible sacrifices that others made before them to give us the marvelous freedoms we enjoy today. He hopes to inspire them to “remain hopeful and idealist,” and to have faith “in the perfectability of this great Republic.”
The justice explained that properly interpreting one of the most consequential provisions in the Constitution — the Fourteenth Amendment — is impossible without understanding the Civil War.
But he takes his clerks to Gettysburg to evoke much broader questions in his clerks as they go forward with their lives and careers. “Why this government? Why this Republic?”
Thomas posits that the Constitution is best understood in the context of the Declaration of Independence, as a charter for a form of government the Framers designed to fulfill the purposes and role of government set forth in the Declaration. He hopes that beholding the place where tens of thousands of Americans gave their “last full measure” is a poignant lesson those clerks will never forget.
Thomas embraces originalism: that every written law — including the Constitution — must only be interpreted according to the meaning that regular people would assign to those words. It is the only way for unelected judges to interpret the law in a democratic republic.
“It’s a guy camping out of the back of his motorcycle who just wants to be left alone,” Thomas concluded with a broad smile on his face, referencing a sight he commonly sees when he and his wife Ginni drive their RV around the country during the Court’s summer break. “He wants to enjoy his country. He wants to raise his family.”
Justice Clarence Thomas clearly relishes playing a role in a constitutional system that promises the guy camping out the back of his motorcycle can do just that.
Ken Klukowski is senior legal editor for Breitbart News. Follow him on Twitter @kenklukowski.
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