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.