Stephen Payne:
It’s wonderful to welcome you to this great event. My first order of business is to introduce our Chaplain of the university, Father Aquinas Guilbeau, who will open up some prayer.
Father Aquinas Guilbeau:
Thank you, Dean Payne, and welcome Justice Thomas. In the name of the Father and of the Son and of the Holy Spirit. Heavenly Father, in your infinite mercy, you have created all things. In your infinite love, you have made man and your image. We come before you this evening in gratitude. Even by mere reason, we can know you as the creator and the governor of all creatures. Everything in heaven above and on earth below moves according to your eternal law. From the rising of the sun to its setting, all dominion is yours. In your goodness and for our happiness, you have made the human creature to share in your governance. Not only for subduing the earth, but more importantly for shaping our hearts and our families and our communities. To be human is to govern our actions by reason, toward justice. In so doing, we imitate you. In so doing, we merit reward for the good that we do and punishment for the evil that we commit.
As you raised up Moses of Old, you still raise up governors for our common actions so that through their judgments and decisions we might achieve the common good. You make law and the service of law a noble profession. We ask you, Father, to bless our guests this evening, justice Thomas. Bless to his family, his staff, his colleagues on our nation’s Supreme Court. May they, like Solomon, seek your wisdom as they rule on matters of law. Continue to bless our university and especially its law school. May it service to God and nation bear just and righteous fruit. Finally, we pray for our nation, especially as we celebrate the 250th anniversary of its founding. Ours is only one nation on earth for which you provide, yet we cannot help but take pride in its promise and its plenty. Help us to be good citizens and good stewards of what you have given us. We ask all these things through Christ, our Lord.
Stephen Payne:
Amen.
Father Aquinas Guilbeau:
Mary, mirror of justice.
Stephen Payne:
Pray for us.
Father Aquinas Guilbeau:
In the name of the Father and of the Son and of the Holy Spirit. Amen.
Stephen Payne:
Thank you, Father. Well, first, I’d really like to thank the president of our university, Dr. Peter Kilpatrick, for being with us tonight and the provost of our university, Dr. Aaron Dominguez, who’s here as well. And Mrs. Kilpatrick, Nancy, thank you for joining us. There are lots of great things happening at our law school. You may have heard we’re at our highest ranking ever in our history, that our job placement rate is out of control good, was above 95%, that we just landed the biggest first year class in over 13 years and, at least by formal metrics, the most qualified class in the history of our school. You upper division folks, don’t worry. You’re just as good. Alums, I’m not so sure. No. Welcome to our alumni, to members of our board of visitors, to our faculty, to our colleagues from other schools, deans and administrators, to our staff, our wonderful staff who help put all this together.
Thank you very much. I first want to congratulate Professor Joel Alicea and all those faculty and staff and students who are associated with our Center on the Constitution and the Catholic Intellectual Tradition. CIT as we say, since the name we came up with is such a mouthful. I take responsibility for that in the first instance. CIT, this, first of all, the fourth year that we’ve had an inaugural event for the year like this or a kickoff event for the year of their events like this one and the fourth year in a row that CIT has had a Supreme Court justice come address our community. So it’s just a wonderful record and the fellowships that CIT sponsors, the event they sponsor. They sponsored hiring they’ve allowed us to do. I just really want to congratulate Joel and all the folks associated with CIT on the tremendous engine they’ve been for our law school in achieving what it has achieved.
So thank you very much and please. I also want to welcome and thank our students. We have the best students in the country and really both sharp and civil. And I thank you for upholding the great tradition we have at our school and our university community generally of being civil to one another, of being able to have the kind of discourse that just can’t take place anymore on so many college campuses in the current environment. And I want to thank you for those who disagree with speakers at events that we have, for those who agree with speakers at events we have. We can all come together and really suss out the truth. And we can be in faith and reason can be in dialogue with one another on this campus, as it can’t in the same way just about any other place. But we can be kind and respectful to each other, even if we disagree. And I’m just so proud of our students for upholding that tradition and want to give you a round of applause as well.
I also want to thank Professor Jen Mascott. I call her professor, but soon we’ll all have to call her judge, I think. We recruited Professor Mascott to come to our school. She was a great steal from us from another very good law school in the area. And we had her in the classroom only for a short time, but boy, are we thrilled and proud to call you ours as you … She’s been nominated for the Third Circuit Court of Appeals, as you may know, and soon I think will be become a federal judge. So thank you, Professor Mascott. She also was instrumental in one of the things I’m most joyful about, which is that we have Justice Clarence Thomas not only here tonight, but teaching a course at our law school this semester. And that’s just an incredible experience for our students. He’s teaching it with Judge Maggs who’s here as well from the Court of Appeals for the Armed Forces and it’s already a wildly popular course and getting such great feedback from the students about it. So first, this round of applause is a thank you to Professor Mascott.
And finally I’d like to thank Justice Thomas of course for doing this, for committing to teach a course here. It’s just an extraordinary opportunity for our community and students especially. I know that you do because everybody after these things comes up and tells me so, but I hope you really appreciate the opportunity that you have to learn from someone who is not only one of the most brilliant legal minds in the country, but even in the short time that I’ve been able to spend with the justice he’s shown himself to really care about people and about their real stories and the real stories that are behind the cases that come to the Supreme Court. And boy, if you haven’t heard him laugh, I hope you get a chance to because it fills the heart with joy. So with all of that, thank you, Justice Thomas.
Now, I will turn it over to the director of CIT, Professor Joel Alicea. I will not give him the introduction that he’s due, but to say he was the first hire the law school made after I became Dean more than six years ago, after more than a decade of not hiring tenure-track faculty as the school kind of shrunk in size a bit. And boy, I’ve said this many times before, but it’s been at least half a year since I’ve said it. We really hit a home run the first time at the plate. Joel has published in all the top legal journals and I love to see his teaching evaluations because they’re often filled with comments from the students along the lines of hardest course I’ve ever taken, best course I’ve ever taken. So that just speaks volumes to me. And he also, of course, models what a great legal professional and person should be and so I’m very pleased to hand things over to Professor Alicea.
Joel Alicea:
Well, thank you, Dean Payne. I’ll be brief so that we can get to the main event. Welcome to the opening event of the 2025-2026 academic year for the Center for the Constitution and the Catholic Intellectual Tradition, or CIT for short. We promote scholarship on the relationship between the American Constitution and the Catholic Intellectual Tradition. The Catholic Intellectual Tradition refers to the writings of the many philosophers, theologians, lawyers, and others who’ve contributed to the way in which the church understands the truth, including the truth about things like law and politics. It encompasses the works of Catholic thinkers like St. Augustine and St. Thomas Aquinas, but also the writings of non-Christian thinkers like Aristotle and Cicero. We’re in our fourth year of operations here at the Columbus School of Law and, as Dean Payne said, for the fourth consecutive year we’re opening with an event featuring a Supreme Court Justice.
We previously had Justices Alito, Barrett, and Kavanaugh in our prior three years and we could not be more excited to be hosting Justice Clarence Thomas today. While clerking for Justice Alito, I had the great privilege of having many conversations with Justice Thomas whose heroic life continues to inspire me. And there’s no one better to interview the justice than one of his former clerks, Jennifer Mascott. Jen is an associate professor here at CUA and an affiliated fellow at CIT. She’s also the founder of the Separation of Powers Institute and she’s currently on leave from her role at CUA to serve in the White House Counsel’s office and, as Dean’s Payne said, is currently nominated for the Third Circuit. She clerked for then-Judge Brett Kavanaugh before clerking for Justice Thomas and we’re delighted to have her back with us this evening. So please join me in welcoming Jen Mascott and Justice Clarence Thomas.
Justice Clarence Thomas:
Judge.
Jennifer Mascott:
Well, thank you, Joel, and thank you Dean Payne. And I could not be more happy to be back here and I’m just really grateful to Catholic University for being my home here in Washington DC and for all of the great students who I started to get to know last year. And I’m so thrilled that we’ve got Justice Clarence Thomas here with us tonight. We’ve got to give him another round of applause. So Joel has assigned me the task of giving the real detailed introduction to the Justice and the Justice is so humble. I’m hesitant. He may not like it, but I’m going to live a little bit dangerously. I’ll just say a couple nice things. First of all, as a former clerk, Justice and Mrs. Thomas are two of my favorite people on the planet. Dean Payne is right. If you spend any time with them, you will know their warmth and their heart for people of all walks of life.
And then jurisprudentially, Justice Thomas, now having been on the court almost 34 years, is one of the most impactful jurists of the 21st century. He’s the sixth longest-serving justice and has a really just amazing life story and that embodies the American story of hard work making the most of freedom and opportunity. And if you’ve not had a chance to read his memoirs, I highly recommend them and also a documentary called Created Equal about the Justice’s life, starting in poverty and segregation in Pin Point, Georgia and then rising, taking a trajectory all the way to the Supreme Court. So some things that you may not know about the Justice, prior to his time on the court, those 34 years working with colleagues here in town, the Justice served on the DC circuit. He was the Chairman of the Equal Employment Opportunity Commission for almost eight years. I didn’t realize it was that long until I went back.
Glad to testify before Congress during those years. And Assistant Secretary of the Education Department. He is a lifelong product of a lot of Catholic education parochial schools and I hope we’ll hear about all of the blessings of your education with the nuns in your hometown as we go through the evening and then at Holy Cross and Yale. And he’s also very generous with his time. A teacher, obviously you’ve heard about his class here tonight, and hopefully we’ll talk more about how he and Judge Maggs walked students through constitutional history. But he also taught for a decade, more than a decade at a couple of other law schools as well. And so very generous with this time here around town with students and really around the country mentoring people. His service is unmatched personally and academically and professionally. And then talking about his jurisprudence on the court, and we’ll talk a little bit more about this tonight as well, but really has been an originalist before the word became part of the lexicon, really, at the Supreme Court.
I mean when you started serving in 1991, we just were not reading the kinds of originalist textualist opinions that we have today. Jan Crawford wrote a book talking a little bit about the trajectory of the Supreme Court in those last 30 years. And so Justice Thomas over that time, his opinions really have gone from a descent of one to then pulling one or two along and just amazingly the last few years really becoming a major point of discussion. One area in particular that’s near and dear to my heart is the administrative law jurisprudence and a series of concurring opinions in 2015 about what is the Chevron Doctrine? It doesn’t seem consistent with the Administrative Procedure Act, looking at other kinds of deference. And now just less than 10 years later, the Chevron really being overruled. Influential also in Second Amendment jurisprudence, First Amendment jurisprudence, preemption, too many areas really to name.
My favorite comment about Justice Thomas, though, as I was looking back at the New York Times article from 2020 that said some may even think of you as a pop culture icon. So I love it. I love it. In any case, we are really grateful to have you here tonight, but one of your biggest impacts is not just your jurisprudence, but the students that you have taught who are going to go on to serve for generations, your law clerks. And we’re just very honored to snatch a few minutes of your time. So starting with your course here at Catholic University, why have you made the decision over the years to spend so much time, even out of the court with all the demands there, to come and teach and be with students?
Justice Clarence Thomas:
Well, first of all, thank you for inviting me and thank you all for such a delightful event and important event. And I first met Joel at Harvard, the Federalist Society, but as far as teaching, I love teaching with Judge Maggs. He does all the work and I get to sort of just hang around. And he is such a fabulous teacher and he was of course with me my first term on the court. We drew him back from the University of Texas Law School where he was employed to help me during the second half of my first term. And that was a brutal term. As far as students, when I was in law school, one of the things that I did not like was it seemed like most of the professors were too important to actually care about students. And also, there were things that made no sense to me in law school. It was as though you were told what to think and you regurgitated it on exams and you were not encouraged to do the work and think it through and arrive at your own views about that.
And in talking to then Professor Maggs at GW, I suggested what about doing a course that actually tries to dig through cases and find out what the dispute really was about? Who were the people? What were they upset about? What happened to them? What happened to them afterwards? And of course he was so generous, that he was teaching all these courses, he was acting dean at GW, and he agreed. And it’s a lot of work, but then we did that for over a decade at GW and after Dobbs. And I think we were tolerated there. I know it’s your alma mater. So we stopped for a couple of years after Dobbs after some unpleasantness. And I missed it, to be honest with you. I missed teaching with him, I missed the students. There’s nothing like the excitement seeing students figure it out for themselves, that maybe they were told something about a case and when they dig into it, it’s sort of like, again, the originalist stuff.
When you dig into it, perhaps some of the doctrines that we use now to dominate law, it may not have a basis in fact. It may not be as forceful when you actually take a look at the case, the context of the case, what they were really arguing about. You ask yourself perhaps we should, or at least for us, we should do a course on what really happened. I also thought that students should have a vested interest in it and they should teach the courses. They should take the lead in courses. They should not be led. They should be an equal partner in this adventure and that’s what we do. And it’s really more for us. The students happen to come along with it, but it’s like this joint scavenger hunt. Let’s just figure out what really went on and it’s just I missed it, to be honest with you, over the last couple two or three years and we missed it. And it’s been a real joy here. The students are excited, so we’re excited.
Jennifer Mascott:
After doing it for 10 to 15 years, do you ever worry you’ll run out of material?
Justice Clarence Thomas:
No. The human experience is one that seems to have no limit. There’s always something new to learn. And people ask you that sort of thing about being on the court a long time. I think if you don’t think that you have found all the answers for every case, that there’s always something left. There’s something you don’t know. The approach that we take, and Judge Maggs feels the same way, the more we know, the less we think we know. That it only opens up one more door where we think that I’m a little uncertain as to what really went on in some other cases, maybe that the court didn’t see all these things. Again, we’re not arguing doctrinally. We’re just simply trying to figure out factually, contextually, historically what happened. I don’t get bored with the court either, with the work at the court. I get bored with people who are boring, but not the work. The work is important and there is no end to what you can learn from it and what you need to learn in order to adjudicate these cases.
Jennifer Mascott:
One of the things I learned a lot clerking from you was how impactful your childhood with the education in Catholic schools and nuns were on your childhood. What did you learn being on the other side as a student in your childhood or at law school that has impacted your service on the court and your trajectory?
Justice Clarence Thomas:
Well, first of all, I think just when you mentioned the nuns, when you mentioned the people who have been in my life for the first … And just generally I learned gratitude. I have just so much. People love to sort of talk about the way that some of us grew up as though we’re like victims of something, that we are debilitated. What I get from it is just the gratitude for all the people, all the good things that allow you to start a certain place and to go through it and to come out on the other side. I think you’ve often heard me say it’s their victories, things that have happened in my life for my grandparents, my nuns, certain teachers who were there, friends, people who were helpful when I had no other place to go. But my nuns were special. First of all, they demanded that you learn. It’s not like today, where I think sometimes teachers are willing to accommodate or to prevent young people from going through challenges in order to do what they have to do.
The nuns were not that way. One experience I had, my toughest teacher was my eighth grade teacher, Sister Mary Vigilius. These were the Missionary Franciscan Sisters of the Immaculate Conception and they were in the full habits and the whipple, the whole bit. And someone asked me before, did I ever have much to do with white people in Savannah? And I said, “No, not really.” They said, “Well, what about nuns?” I said, “They weren’t white. They were nuns.” I mean, they were up there on a whole nother order. But we had to take an entrance exam for high school in the eighth grade and I did very, very well on the entrance exam. And Sister Mary Vigilius, as my eighth grade teacher, this is May of 1962. It’s not a date. It’s a day I remember, a day of infamy. But at any rate, Sister Mary Vigilius, when she looked at my score and she was aware of my effort in the eighth grade, her exact words were, “You lazy thing, you.”
Well, when I saw her 19, 20 years later in Boston, retired from teaching after 40 years, no longer wearing the full habit. They dressed differently then, but I saw a different person. I was in my 30s. She was retired from teaching and we sat in the living room of this small convent and I told her what she had said. And she said, “I am so sorry.” Then for the first time I realized she said what she had to say to get us out of the circumstances we were in. She was making herself do it. Before, you thought it was just a part of her personality. And then of course as I got to know her over the years, the last picture I have with her is we’re celebrating her 100th birthday. She had been a nun for 84 years and she became my favorite aunt, of course. And we talked about that. They wanted us to succeed and the only way to do it was to demand it.
And one of the things that they did was they would … And they also saved us. Remember you had segregation. They adopted the Confederate flag as the state flag of Georgia I think in 1957 while I was in grammar school. So they just put the state seal on the Confederate flag. And the nuns, those women were the backbone of sort of our religious world. They were the heart and soul. They were the ones who just shielded us, who made sure we did not ingest the nonsense that we were somehow inferior. And it was religion-based. It was in God’s eyes. We are all made in the image and likeness of God. There was no way what man judged us to be could permeate or could change that. And so you were defended against what was around you, but you also had the responsibility of using all of the talents that were God-given.
So you were required not only as a matter of just school, but as a matter of faith to use all your talents. And if you were given 10, you had to use 10. This was a constant. And so it was demanded of us that we do well. And my grandparents who were not educated, my grandfather had nine months of education. My grandmother went to the sixth grade, such as that was. They went to these one-room schools. And they were all on board. Education was central. The nuns were always right. There was no reason ever to complain. No good would come of it. So I give all the credit to them. I was in the seminary for four years, too. So if the leadership in the church had been as strong and as principled and as courageous as my nun, I would probably be a priest today. It was because of that weakness in the leadership that I left the seminary.
Jennifer Mascott:
Wow. Well, thank you very much for sharing that. That was very insightful. Moving to the present day in your time on the court, I made some suggestions at the beginning that it is more originalist today than in 1991 when you started serving. Do you agree with that characterization? And if so, what do you attribute that movement to?
Justice Clarence Thomas:
I have no idea if you’re right. I can’t say I follow a lot of the commentary on the court. Justice Scalia and I think Robert Bork and that generation and people like Ed Meese probably deserve a lot more credit than I do. But I think the approach, I remember talking with Justice Scalia about it. I had not known him before I got to the court. I knew of him, but I didn’t know him. And we often talked about the fact that we had no right to judge our fellow man.
And that we had to find that someplace at common law, in Article III in the statute, but definitely not in our own sort of bundle of beliefs. And I think it drove you to looking for something that was solid ground. I think the metaphor that I would use, we used to put up a lot of fence lines and use a post hole digger and you’re back in the swamps. And my grandfather would force us to keep digging until you hit solid ground. And I think to some extent that the solid ground was either in the statute or in what was written by the founders, the framers. It’s something that was done contemporaneously, the tradition or a definition of a word, et cetera, but something other than what we think. And I mean, I could, like anyone else, sort of make up a theoretical approach that allows me more running room, more flexibility, but I think I have no right to do that.
And so I think a lot of it simply comes from the fact that I feel strongly I have no right to judge you. I have no basis for doing that. And the limited authority that I do have comes from Article III and then the basis within that has to be something that was written and then to interpret it in a way that’s consistent with what the drafters intended, not what I would want it to be. I really have no way to know whether the court is more originalist now than it was before, but if you say so.
Jennifer Mascott:
Well, as a professor trying to teach constitutional law over the years, recently, it seems at least, there are more justices writing about maybe interpretive methodology in general and using the terminology of originalism. And I guess for those of us, those of you here who you’re first year students, what we mean when we say originalism is essentially just the ideas the justice is explaining, of looking at the text of the Constitution at the time that it became law.
Because to your point, it really only has basis to the extent it has legal authority. And so with statutes, we have textualism, which is similar. One concept that is sometimes seen as competing with originalism is stare decisis, which also for early law students, just simply means looking at prior cases and decisions and giving them some weight when you look at an issue and maybe not looking at it for the first time. And you’ve written in your own jurisprudence, particularly in your concurrence in the Gamble decision on double jeopardy and other times, about originalism and its importance and what that means sometimes for the concept of stare decisis. Do you see originalism and stare decisis as in tension with each other? And what factors do you bring when you write an opinion that suggests maybe a line of cases should be revisited?
Justice Clarence Thomas:
Well, if I find it doesn’t make any sense. I think we should demand that no matter what the case is, that it has more than just a simple theoretical basis. I remember when I took constitutional law in law school. It was a small group and my professor was Thomas Emerson, who was fondly known by the law students as Tommy the Commie. But he was one of the lawyers who argued and I think he argued before the Supreme Court, Griswold versus Connecticut. And a lot of that came out of Yale Law School and Yale Medical School and Connecticut, Eisenstadt and some of these other cases. I remember him ridiculing Griswold, even though he agreed with the bottom line with the result. And he would just make fun of it. And I said, “Well, why would something that he considers totally ridiculous be something that you don’t revisit?” And mind you now, I was to the left of Karl Marx at the time ideologically, but I didn’t understand how someone could take seriously something he’s ridiculing.
And why that would be the law of the land if it was so ridiculous to him. But again, I didn’t think I would ever be in a position to do anything. I was just glad to pass the class, but I think we owe people more than just following the last. So the way that the metaphor that we have used is just think of law as these cases as a series of cars on a long train. And you just accept the train and you just add another car. We just follow wherever it’s going. We never go to the front, see who’s driving the train. Where’s it going? And you could go up there in the engine room and find it’s an orangutan driving the train. Would you want to follow that just because it’s a train? And I think we owe our fellow citizens more than that. Someone said in class today that Buck v. Bell was never overruled. Do we follow that?
Do we believe that in eugenics, do we believe that three generations of imbeciles is enough, that you can go around sterilizing people just because the case has been decided or do you revisit it?
Jennifer Mascott:
Right.
Justice Clarence Thomas:
I don’t think that I have the gospel and I don’t think that any of these cases that have been decided are the gospel. And I do give respect to precedent, but the precedent should be respectful of our legal tradition and our country and our laws. And be based on something, not just something that somebody dreamt up and others went along with. Let’s just take for example. Do you think that Plessy was right? That was a precedent for what set almost seven decades. Or do you think you should have just followed it because it was already decided? Or do you think it somehow violates, it’s so wrong that it needs to go? The court overruled Bowers V. Hardwick and I don’t remember people complaining about that. That was a precedent. There was a statement. I went back and taught a course on something like this. I think it’s so important, so I started years ago from the very beginning of my tenure, when something was bothering me, actually dig into it and teach a course on it, to bat it around with students, with other professors.
Did so not just to learn it at a superficial level, but to actually go back and to ask questions, to ask yourself questions, to bat it around with my law clerks before. And then what makes sense? Think about it. If someone were to say that, decide a case and said, “This carpet is orange,” and that is precedent, what do you do with that? I mean, look at the carpet. You’re a judge. You’re looking at it and it’s been decided that it’s orange. You’d say this person must have been hallucinating. Now, if it said that the carpet was grayish or gray and maybe I think it’s just gray, but it’s grayish was decided, well, you can go either way on that. So you say, “Look, I go with the precedent.” Either makes sense. And I just think what I was trying to say in Gamble was simply, look, if either choice is within reason, but you would’ve gone with A or B is reasonable, and you would’ve gone with A, but B has been decided, you go along with it.
But if Z is totally stupid and that’s what they’ve decided, you don’t go along with it just because it’s been decided. That’s all I was trying to say. At some point, we need to think about what we’re doing with stare decisis and it’s not some sort of talismanic deal where you can just say stare decisis and not think, turn off the brain.
Jennifer Mascott:
Right. No, and I think also the court recently has been writing a little bit more about that. Justice Alito had an extensive explanation in the Dobbs decision, about how the stare decisis factors even used and applied in a lot of cases leads to overruling, which I think is your point.
Justice Clarence Thomas:
Well, he is. I have tell you a story about him.
Jennifer Mascott:
I would love it. Go ahead.
Justice Clarence Thomas:
So he was a year behind me at Yale.
Jennifer Mascott:
That’s great.
Justice Clarence Thomas:
And he was a real student. I mean, he was from Princeton. He was really sort of nerdy.
Jennifer Mascott:
Serious?
Justice Clarence Thomas:
No, he was really nerdy. So I asked him, I said, “Sam, we were at Yale two years together. Why didn’t we become friends?” And he just looks at me. He gives me this horrified look. He said, “Clarence, you were scary.” You have these visions of Halloween or something. But no, he is very, very thorough. And I think to him, simply you raise the questions. Literally, I don’t think I have all the answers, but I do think you should engage as members of the court and tell me why I am wrong.
Jennifer Mascott:
Right. Absolutely.
Justice Clarence Thomas:
I had a view of double jeopardy. I think I accepted double jeopardy. I think I came out in favor of the precedent in Gamble, right? That was a concurrence, as I remember it.
Jennifer Mascott:
Yes. Yes, sir.
Justice Clarence Thomas:
Yeah. So I just think that it doesn’t mean you are here to overrule everything, but you do want it to mean more than just this talismanic thing where you turn off your brain and you don’t rethink things. There was something in Justice Goldberg’s, but he said something really curious and I think it captured a lot of what I do think how stare decisis is used. He said that you use stare decisis rigorously. You apply it rigorously when you want to overrule a prior precedent that you don’t like, but loosely when it’s one of yours. Well, that’s no test at all. I can’t remember which book that’s in, but I think that’s close to accurate and I don’t think that that is acceptable.
Jennifer Mascott:
Right. So it sounds like when thinking about overruling, look at how wrong it is and try to really examine and figure out how big the error is. One other decision obviously that has to be made on a court with nine members is when you’re in the majority how you make decisions about when it’s important to write separately. And as a law student, I mean, I just remember reading concurrence after concurrence of yours in the case books.
Justice Clarence Thomas:
I’ve never read a concurrence when I was in law school. I was just glad to get through the excerpted opinion. But see, you got all those A pluses. I did not.
Jennifer Mascott:
You got great grades, I’m sure. But in any case, well, your concurrences have been very influential. It’s also true. I mean, the recent decades the court has had a lot more concurrences. Back in the day, it was just one lead opinion. You’re deciding fewer cases. You have more separate writing, but you personally, I think, have given a lot to law students and jurists and lower courts to think about. When you write separately in concurrences, do you have a particular factors that you use when you decide, whether you do the work to write separately?
Justice Clarence Thomas:
Actually, it started from the very beginning. My first sitting, I was not a judge. I was a bureaucrat. And suddenly I wind up, I’m on the D.C. Circuit, which, in my view, I could have just stayed on the D.C. Circuit. I liked the D.C. Circuit. I liked the anonymity that went along with being on the D.C. Circuit, but I was only there less than a year and a half and then sort of moved against my will. And so I wind up on the court and the first thing, think of a case like Hudson versus McMillian, cruel and unusual punishment. There were things I didn’t understand. That went back to my grandfather. I’m not going to use the cuss words he used, but he said, “Boy, if it don’t make no sense, it don’t make no sense.” And I didn’t understand how something that would be considered a minor injury could be …
Jennifer Mascott:
In a jail.
Justice Clarence Thomas:
Well, I mean, it was a guard slapped the guy, right?
Jennifer Mascott:
Right. Okay.
Justice Clarence Thomas:
I didn’t understand. First, I have to decide what is punishment, cruel and unusual? What is punishment? It’s just an assault by a guard. Is that punishment is that a part of your punishment? Say you’re in for 30 days or is that a part of your punishment? So we were asking very basic questions. How is something that’s minor cruel and unusual? And so we started going back and taking a look at those. And if you go at conference or in dealing with my colleagues who were new, I was very respectful of them, but I wanted to know how can you square a minor injury with the cruel and unusual punishment clause?
Jennifer Mascott:
And with making it a constitutional standard.
Justice Clarence Thomas:
And just where do you get that? It doesn’t make any sense to me, so I wasn’t really contesting it. I was trying to understand it. So I wrote separately to just get them to explain to me why this should be adjudicated under the eighth amendment. And I didn’t get much of an explanation. I didn’t have the votes, but then later on when I went to particularly in the Eighth Circuit when I had that conference, I would go to the judicial conferences and the judges thanked me for raising these things because now it gave them because they have to follow. When you’re on the Court of Appeals, you have to follow even the opinions you don’t agree with. It now gave them sort of a license to follow the precedent, but question the precedent. And it was helpful to them just to have someone raising it. And so that was the beginning, really.
Jennifer Mascott:
This is a little bit of a spontaneous question, but does the separate opinion writing work the opposite way as well? If it’s a separate writing on the Court of Appeals, does that give the Supreme Court, when it’s considering whether to take the case [inaudible 00:45:29]
Justice Clarence Thomas:
The answer is yes.
Jennifer Mascott:
Okay.
Justice Clarence Thomas:
There’s some of us, it’s very helpful to have someone tease out the arguments, even if they follow the decision.
Jennifer Mascott:
Okay. Makes sense.
Justice Clarence Thomas:
It is very helpful.
Jennifer Mascott:
That’s great.
Justice Clarence Thomas:
The worst ones are where people just rotely go along, give you a very, very short opinion without any detailed explanation. Even if you don’t agree with it, it’s better to have the thing teased out.
Jennifer Mascott:
That makes sense. That’s great.
Justice Clarence Thomas:
And so that was one of the added benefits of giving license to, say, the Courts of Appeals to also raise it because you get the benefit of excellent, excellent opinions.
Jennifer Mascott:
That’s great. And on the same vein of just explaining opinions and research, we talked in general about originalism. Multiple justices have been writing about history more generally. Text and tradition came up in Dobbs. It’s come up in other opinions. Is your sense of text and tradition and how it’s playing out that it’s consistent with originalism and is it a reliable basis on which to decide cases?
Justice Clarence Thomas:
Well, I really don’t engage in a lot of these debates about originalism. If you go back and you take a look at McIntyre, the anonymous speech case, I disagree with Justice Scalia, who is one of the arch originalists, although he …
Jennifer Mascott:
But he called himself a fainthearted one.
Justice Clarence Thomas:
Well, he actually distinguished himself from me by calling me bloodthirsty.
Jennifer Mascott:
Was that a public statement he made?
Justice Clarence Thomas:
Yeah. Yeah. I mean, he wasn’t known to just sort of be shy about what he thought. And I would ask him about that and he said, “Oh, you are. Look at it.” But we disagreed. He thought that anonymous speech was not protected by the First Amendment in McIntyre and he talked about the subsequent traditions. And I thought it was really a good back and forth. To me, that’s important because I understood. I so appreciated his argument. And that’s why I think that even if you don’t agree, that if you argue in a way that teases it out, that you have a chance of persuading. A colleague, when we went on the court, he didn’t agree with me about Chevron. He was one of the big believers in Chevron, but we never yelled at each other. We never called each other … I don’t believe in that. I think what you do is you make your argument, I think about your argument, and maybe you won’t persuade me this year, but five years down the road you will.
And he and I would sit and talk, but not regularly. I mean, he was traveling and out killing unarmed animals or something like that, but he and I had a very, very civil and warm relationship. So you can look at the opinions. He can have sharp elbows with others, but he and I had a totally different relationship. And I think it benefited both of us because I understood his argument in McIntyre about subsequent traditions and he understood mine and simply said, “You don’t have enough there.” So the point was that if you didn’t have anything at the found, if you couldn’t find anything, what about the traditions after that? Would that be enough to provide you with the basis?
Jennifer Mascott:
That’s a good question.
Justice Clarence Thomas:
Yes.
Jennifer Mascott:
Well, now you all had a wonderful friendship and I remember after his passing how much that impacted you and Mrs. Thomas. And we would spend time at our clerk reunions and lunches praying for, I think, and toasting Justice Scalia and his career. I also recall from law clerk days one of your buddies being Justice Breyer. He would sit next to on the bench and you all would talk a lot during oral arguments.
Justice Clarence Thomas:
That court, that was together about 11 years. It’s still my favorite and I think part of it is I came of age with that court. That I’ve been there a long time now, but those were truly my friends on that court. And people that I think don’t get enough credit, like Sandra Day O’Connor. I think that she was very special. She was truly, in my view, a renaissance woman. She was smart, she grew up on a ranch, she could ride, she could shoot, she was a great athlete, she was a great mother, she could cook. I mean, she was well traveled. And you don’t have to always agree with a person to admire a person. Justice Breyer was a friend. We were very different, but he’s a likeable man and he was fun to be on the court with. Ruth Ginsburg, we were on the court together a long time. And there were people I was there just for a short while with. Byron White, who I think the world of, I still have his chambers simply, in large part, because he had those chambers.
But in any case, I think you can be affected deeply by people that you don’t necessarily agree with, you don’t share the same hobbies. Justice Scalia asked me once, he tried to get me to go hunting with him, and I told him I’d do my hunting at the supermarket, but I’m not going in the woods. I grew up in the woods. I just got out of the woods. I get to Yale and some guy who’s from Groton or someplace, five generations of Yale, and he says to me, “We all need to go back to nature.” I said, “Go by yourself. I just got here.” I mean, for you, nature is getting you some L.L.Bean stuff and walking around. Yeah, there’s no way. But Justice Scalia, he was constantly trying to get me to go out, go do things with him. He said to me once, he said, “Clarence, you like opera?” And I said, “Yes.” Why don’t you go to the Kennedy Center with us? And I said, “I like opera, but I don’t like people who like opera.” He just looks at me like you are lost.
But more seriously, he asked. We wondered. Here we are. He’s from the northeast from educated parents and I’m from the southeast and the not educated, certainly a world of mostly functional illiteracy. And he said, “How did we wind up at the same place?” Because we rarely, I think maybe not even a half dozen times in all the years we sat together, did we talk about cases before we decided them. And we wind up the same place and we were both perplexed by that. It was only years later talking to after his passing. Father Scalia was over and I said, “What do you think about this?” Because it perplexed the two of us. And he quickly said it was your Catholic formation.
Jennifer Mascott:
That’s interesting. Wow.
Justice Clarence Thomas:
And I think he may have had a point and the thing that we agreed on is that we certainly had to have a reason to judge a fellow man and that we had no authority to make it up.
Jennifer Mascott:
So is that how you would see your Catholic values? Since we’re at a Catholic institution, Catholic law school, shaping the practice of law, just the kind of idea that there’s truth outside of ourselves, an absolute, or what kind of values could Catholic education impart to the practice of law?
Justice Clarence Thomas:
Well, I think part of it is there’s transcendence. There’s something transcendent. There is a God, that we don’t get to make up what is right and what is wrong. We only get to choose between right and wrong. I never claimed and I will not claim to be a Catholic or a Christian par excellence. I left the church for 25 years and people have asked me why. I said, “Well, I was 19 years old.” And that’s as good an explanation I can. And it was really over the race issue and bishops not standing up the way my nuns did, sort of accommodating bigotry. It’s something that sets me off. I’m not rational about bigotry. I cannot stand it. So I left the church in 1968 and left the seminary, in ’68 when I left the seminary. And it wasn’t until slowly around the time certainly … Actually, I lived over here. I lived in Hyattsville and I started, among the things, the ways back was to stop daily at St. Anthony’s because my then driver, Mr. Randall, was a member of that parish.
And I would stop and make a daily visit and it was simple. It’s just like it is today. Lord, give me the wisdom to know what is right and the courage to do it. It was as simple as that. And it took me back to the simple, but clear things that my nuns did, that they were not complicated. They had faith and they believed and they lived out this faith. Think about the things that they were called. They were called the N-word sisters and this is the Savannah of 1950s and ’60s when things were totally segregated. And yet those nuns never, ever once backed away from us. They were always on our side. They always believed in us. They always made us believe in ourselves, so you will always hear me say treat the nuns with the just greatest reverence and only hope that I have their courage. What do I think it means? I think that we all, no matter what background we’re from, if we could emulate them, that these women are among the most heroic people I know. It was not popular to do what they were doing.
Jennifer Mascott:
That’s amazing.
Justice Clarence Thomas:
I was the only black kid in a white school that I knew of in Savannah in the mid-’60s. And yet I was there because I had been prepared by these nuns in an all-black school. The first kids I knew who were National Merit scholars were in the all-black school. And it wasn’t me, I can tell you that. There’s no way I was going to work that hard. But when I was in the seminary, now it was a different order. I owe, as I said at the beginning, everything to these nuns and my grandparents and the people who encouraged me because they were not educated, but they had these values. My grandfather had these Catholic values. My grandmother had these. She was Baptist, but she was the sweetest, most religious person, saintly person. She was like my nuns and I have nothing but reverence for them.
And that’s the environment I grew up in, but the thing I would have to say is they showed us in the midst of want how to be grateful for everything you had. And we would be sitting there sometimes and we would be eating a dinner of chicken feet and my grandfather would thank God for the food on our table, the roof over our head, and the clothes on our back. Now, we’re eating chicken feet and the gratitude. And I think that carries you a long way through difficulties when you find something each day for which to be grateful, when you find people. And when the downtown D.C. was not as nice as it is now and built up, it was pretty grungy for a while. I was living in Hyattsville in an apartment and there were a lot of roaches. That’s all. I’ve never seen that many roaches in my life, but it was off right on Queens Chapel Road. You can go, there are two high rises. One wasn’t so great and the other one was better. I was in the one that wasn’t great, but it was all we could afford.
But I was downtown and it was one evening and I think it was at a … I can’t remember whether it was some fast food place, like a McDonald’s or a Roy Rogers or whatever it was, Burger King, places I don’t go to now. But I remember spending my last $20 and getting … Actually, I just spent a couple of bucks for a meal and I was leaving and it was a winter and there was a lady there sitting on a corner with a little baby. And I remember thinking as I saw her that the change that I have had from that $20 bill would mean more to her than it did to me. The thing that I carry even to this day is the gratitude she showed for that. And it’s as though the joy that I got from her gratitude. And I think that somehow we, in this society that complains a lot, we have lost the ability to show gratitude, that we think that every problem we have is the problem of the world. And I saw in my grandparents a totally different attitude.
Think about this. My grandfather did not know his father. He was born out of wedlock. His mother died when he was seven or eight years old. He didn’t get to go to school. He then was raised by his grandmother until she died. And she was a freed slave and he lived on a part of the plantation our family’s from. Then she dies and then he goes to live with his uncle who is a hard man. And yet when that uncle died, we were kneeling at his bed with him there. When you’re a little kid, that really freaks you out. And he wanted us to say the rosary for him as he laid dead in that bed. And then he would go on to look out for his widow for the rest of her life in whatever he did. And you think of the life that he had. No education, nine months of education. It was all he ever had.
And he said he didn’t learn how to read in those nine months. He worked his entire life and this is the Georgia of the early 20th century, so it is not a pleasant place. It’s rural Georgia and yet he was grateful for everything he had. And he passed on those things, he, my nuns, my grandparents, my neighbors, to look at things a different way, to be grateful, to be humble about the advantages that you have, to not think that your opinion is the gospel. It’s just an opinion. To be considerate of your neighbors and the things that are difficult for them, but that was consistent with my nuns. That was consistent with faith. I remember we delivered fuel oil. And when other kids got to go to camp or play or whatever, we delivered fuel oil during the winter and we farmed. We lived on the farm during the summer and he believed that you should work from sun to sun, but this particular winter he walked in this house in this lane and it was a hovel.
It was really bad and he wouldn’t let me get out. He was so upset. And he said that there was a grandmother and a bunch of little kids in there freezing. And he came out and he was crying. And he made me put the fuel oil in and he drove away in tears, but he would not tell me. He wouldn’t let me write a bill. He wouldn’t tell me more than what he said and how bad it was, but it was those things to contrast that we had heat at home. We had food at home and it would be a baseline. He would say, “Look what you have. You get to go to school. You may only have one pair of shoes, but it’s a good pair of shoes. You may not have a meal of steaks, but you have a meal of neck bones or pigtails.” And someone would say, “Well, that sounds a little awful.” Well, that’s a little better than nothing.
Jennifer Mascott:
Right. It’s amazing.
Justice Clarence Thomas:
Yeah, it’s protein, but I don’t use any of that now, I can tell you. But the point is gratitude and the way to look a different way of looking at life. And I think that with my nuns, with the faith over the years and returning to the faith, what it has taught me is why those things are so important. As you know, the litany of humility is my favorite prayer. And the reason is you cannot say that prayer enough. In this town and in the building that I’m in, my gosh, I think there’s really something in the marble, but at any rate, a defense against that is that litany. And that’s my grandfather, that’s my nuns, and that’s the faith.
Jennifer Mascott:
That is really remarkable. Speaking of gratitude, we just could not be more thrilled that you would take time out of your evening and away from Mrs. Thomas to be here and share life stories and your background and approach to judging. And so we just want to give you one more round of applause and thank you.