Oath and Conscience, Clarence Thomas' Stand
"We are in an environment of splendid isolation at the Supreme Court and we're obligated to give an honest opinion. In the end you're left alone with your oath and your conscience."
Humble submission to duty was a main theme of United States Supreme Court Justice Clarence Thomas's in his only public remarks as the John A. Ewald Visiting Professor at the Law School September 9 and 10.
Following brief remarks on life on the nation's highest court, Justice Thomas took questions from a packed house of students at Caplin Auditorium September 9. Earlier in the day he attended Professor Robert O'Neil's Constitutional Law II: Speech and Press class and lunched with leaders of student organizations. His visit also included discussions with Professor Caleb Nelson's Federal Courts class, Professor Pamela Karlan's Regulation of the Political Process class and a dinner with the Federalist Society.
Before he took questions Thomas praised the court for the warm, personal decency of the relationships between the justices, which transcend their differences in reaching decisions.
"The one thing I would designate as the hallmark of my years on the Court would have to be the justices on the court," he said. "They have no axes to grind — they are trying to make the best decisions they can.
"You debate issues with eight other people for a decade and see how long you can stay friends with them. I think some of the steam should have been taken out of some things written for the public, but after all these years and issues the personal relationships between the justices are still there."
Nonetheless, differences in perspective persist. "In almost a decade sitting between Justice Ginsburg and Justice Souter, I don't think I have been influenced by them and I think they would say I have not contaminated them.
"I know of no arrogance on the Court. But I tell you I'm Pollyanna-ish about the Supreme Court. I'm an apologist for it. I have nothing but good things to say about the justices.
Thomas was modest about his role and humble in the face of his responsibility. "It's an honor to be there that you have to live up to every day," he said. "As Justice [Lewis] Powell once said to me, if you ever think you belong there and that you've got it figured out, it's time for you to go.
"I don't have a plan or a mission or a philosophy to work out. Count me out on that score. My legacywhich is something I don't think aboutwill be that I called them as I see them.
Questions and answers:
In answer to a question on whether he felt pressure to vote in line with prevailing African-American opinion on an issue, Thomas said, "There is no pressure."
On what he expects from his law clerks:"Law clerks are the best part of the job. I demand intelligence and honesty from them before a decision is made. An unspoken opinion is a useless opinion. What they think is something I don't want to hear about after the decision is made. I expect them to do all the legwork. I expect civility and no destructive behavior. Clerks become family."
On how important unanimity among judges in decisions is:"I don't know. I just show up and do my job. Society itself is pretty divided on a lot of these issues. We should be happy the court reflects this society so well. I think it's great we can disagree and still be respectful toward each other. Frankly if the other eight justices agreed with me I'd change my mind. I'm not all that confident in all the decisions I make.
On judicial activism:"I think judicial activism is when you disagree with what the court did."
On whether court nominees should face issue litmus tests during Senate judicial confirmation hearings:Thomas said (to laughter), "The Senate Judiciary Committee is not high on my list. Judges should be judges and not politicians. Any such test is bad whether it is screening judges from the right or the left. The judiciary should not be turned into another political arena."
On whether any former Supreme Court justices were inspirations to him:"Marshall, Brennan, Powell, Burger, White, but I don't follow anyone in particular. Justice Harlan in standing alone in Plessy v. Ferguson, that was a beacon to me as a young man. I admire him for standing alone."
On Bush v. Gore to decide the 2000 presidential election:"I didn't bring Bush v. Gore. I don't want that to happen again on my watch. They should get enough votes and leave us out of it. We did our best under the circumstances. The only thing I would do differently is write my own opinion so that it would be clear that I still agree with myself."
On why he asks few questions during oral argument:"Everybody else is asking questions. I do not have that many to ask and I can't get a chance to ask them. I also don't like a "Family Feud" atmosphere. Some people have lost their case and some have won on oral argument. But in most cases you can decide on the basis of the briefs. But I wouldn't get rid of oral arguments because they are part of our tradition of getting your day in court."
On whether civil liberties may be eroded by the War on Terror:"There is a tension between the war on terrorism and civil liberties. When we're in a hurry, civil liberties become inconvenient and we [the Supreme Court justices] have an obligation to see to it that doesn't happen. We have to make sure that doesn't happen. We have to make sure rights don't get shoved aside. We can't throw away the rights we say we are fighting the war on terrorism to defend. We have an obligation to stand in the breech. Constitutional bulwarks are design to prevent law enforcement from being as efficient as it would want to be."
On affirmative action:"You shouldn't make decisions on the basis of sentiment. That has a short shelf life. The Constitution does not tolerate race consciousness."
On the opinion he is most proud of:"I don't look at them that way. There are some I'd like to rewrite and I admit error [in Almendarez-Torres v. United States] in [my] Apprendi[ v. New Jerseyopinion.] When we write opinions we are as clear and honest as we can be. On the hard ones you just hope you're right. You just try to do your best and let history be the judge."
On the U.Va. School of Law:"I've been to a number of schools and what I like about here is that people talk and disagree but don't get dug in. You do it in a way that's constructive. I'm enormously impressed with this institution and I've had a number of fabulous clerks from the Law School. This is still The University."
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