Supreme Court

Meet Clint Bolick, Libertarian Lawyer Turned Arizona Supreme Court Justice

The newly appointed justice talks law, politics, immigration, and why he got "visibly tattooed."

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Courtesy of Arizona Governor's Office

Clint Bolick has been at the forefront of libertarian and conservative public-interest litigation for nearly three decades. As a co-founder and former director of strategic litigation for the Institute for Justice, Bolick helped bring about landmark legal victories on behalf of students, parents, property owners, and entrepreneurs. In 2002 Bolick's litigation on behalf of school choice culminated in the U.S. Supreme Court's ruling in Zelman v. Simmons-Harris, in which Cleveland's pioneering school voucher program was upheld. Three years later, Bolick argued and won before the U.S. Supreme Court in a case known as Granholm v. Heald, in which the Court struck down protectionist state laws that banned the direct sale of wine to consumers from out-of-state wineries. In 2007 Bolick joined the Goldwater Institute in Phoenix, Arizona, where took up the reins as vice president for litigation. In 2009 Legal Times named him one of the "90 greatest D.C. lawyers in the past 30 years." In the midst of all of that, Bolick found the time to write several influential books, including David's Hammer: The Case for an Activist Judiciary (2007), and Immigration Wars: Forging an American Solution (2013), which he co-authored with Jeb Bush.

Now Bolick is preparing for a legal career on the other side of the bench. On January 6 Arizona Gov. Doug Ducey (R) announced Bolick's appointment to the Arizona Supreme Court. "Clint is nationally renowned and respected as a constitutional law scholar and as a champion of liberty," Ducey said. "He brings extensive experience and expertise, an unwavering regard for the rule of law and a firm commitment to the state and citizens of Arizona. I'm confident Clint will serve impartially and honorably in this important role." Bolick was Ducey's first appointment to the state's highest court.

In a telephone interview this week with Reason Senior Editor Damon Root, Clint Bolick reflected on his new job, his legal philosophy, his judicial heroes, his pessimism about the future of immigration reform, and why he decided to get "visibly tattooed."

Reason: What first led you to pursue a career in the law?

Bolick: I had planned to be a school teacher and to get involved in politics. The three things that happened late in college to change my direction were, first of all, student teaching in an inner-city high school where I discovered just how horrible our public schools are for many of our students. It made me realize that I could do more for education focused in a systemic direction rather than just a few students at a time. And I interned for Orin Hatch—which illustrates just how long Orin Hatch has been in the Senate—and I really had the epiphany that politics is all about shades of grey. I'm much more of a black and white person. I'd rather lose with a chance of winning than being engaged in the art of compromise all the time. And I took a course in constitutional law. I had not even thought about being a lawyer before that. But cases like Brown v. Board of Education made me realize that if you want to be a revolutionary in America the best route to doing that is through constitutional law. You can really achieve systemic change and principled outcomes. So dispositionally a career in constitutional law, which of course I had no idea how difficult it would be to have such a career, that seemed really to suit me.

Reason: You've written extensively over the years about the judiciary and about the proper role of the courts in our system. Now that you're a justice yourself, how do you envision your job?

Bolick: Of course there are lots of aspects which are not terribly glamorous, like supervising the state bar and administering the courts and all of that. But with regard to the state Constitution, the role of a justice is to give effect to every single word in the Constitution. And to do so in a manner that is as true to the intent of the Constitution as possible.

Reason: We hear a lot about different legal philosophies these days. Originalism, living constitutionalism, etc. How would you describe your legal philosophy, or would you?

Bolick: I always hate to use a jargonistic term, but I'm a textualist. I believe that the written Constitution reflects the social contract that people have made with each other and with their government. And just as with any contract, a judge's role is to enforce that contract vigorously. And the best way of doing that in an objective manner is to resort to the text, and to give meaning to the words as they were intended to mean. Obviously that's not always possible, so occasionally a judge will have to resort to legislative intent and things of that manner. But I think textualists are the most faithful to the Constitution. When you stray from the text you are literally amending the Constitution, which in my view leads to judicial lawlessness.

Reason: Do you have any judicial role models or heroes?

Bolick: Emphatically yes. Certainly my contemporary role model is Clarence Thomas. I don't always agree with Thomas, but Thomas is the one justice who, when enforcing the Constitution, consistently begins with the text, rather than with Supreme Court decisions that have interpreted that text and often placed a gloss on it. I think that exercise is necessary whenever a court is interpreting the Constitution.

Reason: Clarence Thomas played a role in your own career, correct?

Bolick: Yes, I worked at the EEOC [Equal Employment Opportunity Commission] when he was chairman and we became quite close. He is the godfather to the second of my three sons. I think that we share a common view of how a judge should go about interpreting the Constitution, even if sometimes our conclusions might differ.

Reason: You wrote a book with Jeb Bush a few years ago titled Immigration Wars, in which you made a case for immigration reform that you called "pro-immigration" and also "pro-rule of law." Are you optimistic about the chances for immigration reform? Has the 2016 presidential race made you less optimistic?

Bolick: It is not in my nature to be pessimistic, but it is impossible not to be pessimistic about immigration reform. The current Republican campaign has been a reflection of a very disturbing nativist trend. One of the things that has especially disturbed me is, as we report in the book—which was published only three years ago, so things have really moved in a bad direction really quickly—mainstream Republican opinion at that time and consistently before that time was pro-immigration. The typical Republican strongly supported border security, but also strongly supported a path to citizenship for illegal immigrants and other, I would say, mainstream or moderate reforms. For the first time in well over a decade, polls this year show Republican sentiment growing far more nativist than ever before. It is impossible to get systemic immigration reform without bipartisan consensus. And when you see someone like Paul Ryan really duck-and-cover on the immigration issue you know that the pendulum has swung in the wrong direction.

Reason: You've been a practicing lawyer for three decades. Is there one case you've been involved with that you're the most proud of?

Bolick: If I had to choose one that was my favorite it was a case that never even ended up resulting in a legal decision. Back in the 1990s a number of states were discriminating in adoption placements. There is a group called the National Association of Black Social Workers that had adopted the mantra that adoption of black children by non-black families was, to use their term, "cultural genocide." As a result, a number of states were making it very difficult for black children to be adopted by non-black families. This was horrible for black children because there was a surplus of black children looking for adoptive families but a paucity of black families looking to adopt children. So black children were in foster care for very lengthy periods of time.

I teamed up with an unlikely alliance of liberal law professors from Harvard Law School—Laurence Tribe, Randall Kennedy, and Elizabeth Bartholet—and we filed a class-action lawsuit in Texas on behalf of a native-American mom and a white dad who wanted to adopt two black children who were their foster children. The little boy they had in their house was brought in at birth and he was addicted to crack cocaine and infected with syphilis and they nursed him back to health. They fell in love with him and decided they wanted to adopt him. At that point he was removed from their home because they were not black. The little boy was named Matthew, his brother was Joseph. So we filed this lawsuit and it got so much attention that Matthew and his brother Joseph were reunited with the family and Texas changed its law to make it a crime to discriminate in adoption placements. We called it the "Send a Social Worker to Jail Statute." Then Congress in turn passed legislation making it illegal for public entities to discriminate in adoption placement.

The reason that case was perhaps my favorite is that it reunited a family. Even with school choice, with the kids going to good schools and everything, and the entrepreneurs that we've represented over the years, seeing the family being brought back together in the face of this heinous abuse of their rights by the state of Texas was just as gratifying as it gets.

Reason: What's the biggest change in the law you've seen during the course of your career?

Bolick: This is the flip side of immigration because I've really seen some wonderful changes in the law. I think that the main evolution, and this is attributable to organizations like the Federalist Society, the Institute for Justice, the Goldwater Institute, is a rebirth of appreciation for examining the original intent of the Constitution. That's been very, very gratifying. It's really a sea change when you look back only a few decades to the Warren Court and the notion that judges can make it up as they go along essentially.

The other revolution is more recent and I'm proud to have had a part in it. And that is a revival of and emphasis on federalism and a focus on state constitutions. State constitutions often contain protections of individual rights and limitations on government power that are not found in the United States Constitution. Only within the last decade have conservative and libertarian organizations been focusing increasingly on state constitutions. The results so far have been very positive and there's now about a dozen state-based organizations focusing on state constitutions from a market perspective, starting with the Goldwater Institute but they're now all over the country and growing in number and effect.

Reason: In a famous 1905 dissent, Supreme Court Justice Oliver Wendell Holmes wrote, "The Constitution does not enact Mr. Herbert Spencer's Social Statics," meaning that the Constitution does not enshrine classical liberal or libertarian principles. Was Holmes right about that?

Bolick: Technically Holmes was right that the Constitution did not enact Mr. Herbert Spencer's Social Statics. But the notion that the Constitution does not reflect a very deep philosophy and set of principles is absurd. Entire careers have been spent plumbing the depths of the philosophy of our Constitution's framers. The Constitution does reflect a philosophy and it's not entirely a libertarian philosophy; but it is in large measure a libertarian philosophy because most of the Constitution's framers were what we would consider today to be libertarians. And, significantly, the framers of the 14th Amendment, which plays such a large role in constitutional jurisprudence, were certainly what we would consider to be libertarians today. So it is largely though not entirely a libertarian document.

Reason: One last question. Do you mind telling me about your tattoo?

Bolick: Well, I have always gotten very personally committed to my cases over the years. When I took on the cause of tattoo studios and their free speech rights I vowed that if we won I would get inked. And we did win and, much to my wife's chagrin, I got inked. The tattoo is a scorpion, which is on my right index finger. That is my typing finger. I've typed everything I've ever written with one finger. And I thought it would be appropriate now that I'm an official desert resident to have a desert creature on my typing finger. I am not aware of any other state Supreme Court justices who are visibly tattooed, but I hope to start a trend.

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33 responses to “Meet Clint Bolick, Libertarian Lawyer Turned Arizona Supreme Court Justice

  1. Well, his tattoo was much more bad-ass than I was expecting.

    1. A “Don’t Tread On Me” trampstamp?

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  2. Bolick’s nomination is one the few things that Team Red has gotten right in the last few years here in AZ…

    1. Agreed

    2. Yeppers. I about fell off of my chair.

    3. I’m coming out to Sedona, Arizona in a couple of weeks. And I’m looking at maybe doing a legal internship out there for the summer. How is it out there? I know its pretty conservative, but is there enough of a libertarian streak to kind of off set the social conservatives and Sheriff Joe?

      1. Hot. It’s very hot. But as they say out west, “it’s a dry heat.” Srsly, watch your hydration if you’ve never . And sunscreen, lots of sunscreen, unless you are lucky enough to have enough melanin to not need it. But one of my fairly dark “black” friends managed to get his first-ever sunburn during a desert jaunt, so you may be in for a surprise.

        1. Aww, come on it won’t get hot until May! Like my step dad always jokes, “It’s a dry heat…but so is an oven.”

          Truly you do have to be careful,though, they have to rescue people off mountains and trails almost 2x/wk in the summer.

          You adapt, aka, stay the fuck inside.

        2. Well, I’m not that dark. I would say I’m just shade darker than Barry. I’ve never been out west during the summer. Every time I’ve been out there it’s been during fall, winter, and spring (Utah, Oregon, Colorado, and Nevada).

          alldayray

          hahaha

          I don’t worry about that too much my wife has no interest doing a lot of hiking. She does want me take her to the Grand Canyon and do one of those “mule rides” though.

          1. Scottsdale for a Photobiology conference in 1994 around the summer solstice: That was oppressive! Couldn’t even take the outdoor swimming pool until sundown. I joked that they were experimenting on us.

      2. Sedona is full of dirty hippies. Really beautiful though. Going hiking around there next weekend.

        1. How bad are these dirty hippies? Offer to sell me weed bad or they vote for shitty politicians who ban Walmart bad?

      3. You’re coming at the perfect time of year NYer. I’m down in the valley, but up in Sedona I’d expect it to be fairly cool still when you get here (60’s probably). Up in the mountains never really gets that hot, even in July and Aug it rarely gets over 100.

        I’d like to think that libertarians are making a difference (there’s a 100% chance legal weed gets on the ballot next year), but Team Red, particularly socons still rule the day.

        Sheriff Joe is one of the most authoritarian assholes on the planet. He’s literally arrested journalists for writing critically about him. His office has cost AZ taxpayers almost $150 million in fucking lawsuits over the course of his 22 year reign of terror. I cannot for the life of me understand what motivates someone to support that guy.

        1. Can Bolick send that asshole to jail?

        2. That’s fantastic. I can’t wait, I need a break from the Northeast for at least a week.

          That’s unfortunate about the social cons. They’re more tolerable up here because they don’t have power. Some of them have even begun to see the wisdom of supporting limited government. Unfortunately, many of them are still planning to vote for Trump and Rubio.

          I look at the Free State Project in NH and I’m hoping that enough libertarians will come up here and maybe change things, but I don’t have much hope. Well, at least I don’t live in New York anymore.

          1. In NYC & nearby I’m afraid it’s as David Nolan analyzed things 20 yrs. ago: that they’re willing to concede on the economic issues to try to make headway on the social ones, where they think they might have some traction.

        3. i don’t think that the population’s average iq can handle legalized marijuana in arizona….it’s not like the dessert dwellers give a shit if it’s legal anyways……a better place to start would be the criminalization of fat ass protestants like sheriff joe.

        4. Yeah, if Trump wins the Presidency, I can totally seem him appointing Sheriff Joe as US Attorney General.

    1. My first thought exactly. Instead, it’s the Anti-Huck! He is made of anti-matter.

    2. It’s disturbing.

  3. Can we expect a major slap-down of Sheriff Joe?

  4. “Send a Social Worker to Jail Statute.”

    Can we make this a national holiday? “Send a Social Worker to Jail Day”

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  6. I thought for sure he was appointed by a Democrat. The Republicans are worse according to Reason (or they are equally bad at best). Matt or Nick, please straighten this out.

  7. His good work goes back farther than that. I corresponded w him in 1980 while he was working lawyer-wise against cable TV regul’n in Colo.

  8. refreshing to hear and good to know that there are people who exist, that at the very least, consider the constitution to still be a good frame of reference.

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  10. http://www.washingtonpost.com/…..publicans/

    “By any measure, fears of (Illegal) immigration are driving many white Americans to the Republican Party. And, indeed, the Republican strategy on immigration appears to have been successful. Republicans now control the House and the Senate, the governor’s office in 31 states, and two-thirds of the state legislatures. They are winning the political war.”

    “An even bigger factor is that the ties of racial and ethnic minorities to the Democratic Party are tenuous. Research by Taeku Lee and myself shows that most Latinos and Asian Americans don’t feel like they fit into either party. In national surveys, those who refuse to answer a question about party identification, those who claim that they do not think in partisan terms, and independents make up the clear majority of both groups. All told, 56 percent of Latinos and 57 percent of Asian-American identify as nonpartisans.

    Even among blacks, there are signs of ambivalence. Almost 30 percent of blacks feel that the Democratic Party does not work hard for black interests.”

  11. http://www.philly.com/philly/o…..qus_thread

    “Most Hispanics aren’t single-issue voters when it comes to immigration. A recent Gallup poll found that among registered Latino voters, 67 percent are at least willing to support a candidate who doesn’t share their views on immigration. And 18 percent don’t consider the issue important at all.

    What’s more, many Hispanic citizens have little sympathy for immigrants who haven’t played by the rules. Especially among Latino voters born in the United States, resentment of immigrants who have entered the country illegally can run deep. Forty-two percent of American-born Hispanics disapprove of President Obama’s executive actions to prevent the deportation of illegal immigrants.”

    Gee, No wonder why I fall into the Proud Independent group.

  12. http://dailycaller.com/2014/11…..are-video/

    “In the passage, Obama also reveals that he personally feels “patriotic resentment” when he sees Mexican flags at immigration rallies.

    “Native-born Americans suspect that it is they, and not the immigrant, who are being forced to adapt” to social changes caused by migration, he said.

    “And if I’m honest with myself, I must admit that I’m not entirely immune to such nativist sentiments,” Obama wrote. “When I see Mexican flags waved at pro-immigration demonstrations, I sometimes feel a flush of patriotic resentment. When I’m forced to use a translator to communicate with the guy fixing my car, I feel a certain frustration.”

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