Justice Clarence Thomas: 2021 Tocqueville Lecture, Transcribed

"I don't do a lot of hand wringing in my opinions and tell people 'Oh, I'm really sad.' That's not the role of a judge. I mean, you do your job and you go cry alone."


On Thursday, Justice Thomas delivered the 2021 Tocqueville Lecture at Notre Dame University. I've used Otter to transcribed the lecture here.

There are many gems during the lecture, and the Q&A session. Here I'll highlight one question about how he handles cases in which his legal views and policy views diverge. Thomas approaches the question with candor and grace.

Question: Has there been times in your career when the legal questions you must resolve conflict with your Catholic faith? If so, how do you proceed?

Justice Thomas: No, not really. I think if it did, if I think if it gets something conflict, that great. Where I fundamentally think it's wrong, I would just go and do something else. The I'm at a point, you know, I said that early on, and I still believe that, but I have lived up to my oath. There are some things that conflict very strongly with my personal opinion, my policy preferences. And those were very, very hard, particularly early on. But you don't I don't do a lot of hand wringing in my opinions and tell people 'Oh, I'm really sad.' That's not the role of a judge. I mean, you do your job and you go cry alone. But there have been some words. But there have been some that broke my heart. And that just were really, really high. And I've been there sometimes, particularly early, you sit with the more seasoned members of the court, and you explain to them what's wrong. And when I first became a judge in 1990. My colleague, Judge Silberman, Larry Silberman, sat down with me. And one of the things that's really interesting is no judge ever tells you how to do your job. The only people who tells you tell you how to do your job, or people who've never been judges. But anyway, he said to me, he said, I'm just going to give you a little bit of advice, unsolicited advice. Before you sit on a case, ask yourself this question, what is my role, in this case, as a judge, not as a citizen, not as us as a as a as a Catholic or any What is my role, in this case, as a judge? That is a hard one. Because if you stay in that lane, there are some things that you as a citizen, or you as a personal preference would want to come out a different way. And that's what I've tried to do the other thing, and then I'll be quiet about it. But I have four law clerks, four wonderful law clerks. And they're very, very bright like your students. And they watch you I tell them to watch me. And that's something my grandfather always told us watch me and do as I do not, as I say. So he didn't really mean that do as I don't do as I say, part I can tell you that. But the I tell my clerks that you watch me for a full year, and my job is that you leave here with a clean with clean hands, clean hearts and clear conscience. We will never do anything that's improper. And I encouraged them to tell me every clerk works on every case. So if you see something, your job is to let me know. And we sit and we talk about it. But in 30 years or 30 terms, we I don't think a single Clerk will ever tell you we have that anything other than our job.

Well said.

NEXT: Today in Supreme Court History: September 17, 1787

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  1. Hire a carefully cultivated, homogeneous class of clingers as your clerks — what would Heterodox Academy say about such political, partisan, one-sided use of public funds and opportunities?* —and they will agree with your relentlessly conservative conduct, offering nary a discouraging word?

    Is a clump of dirt a gem in Catholic dogma?

    (* The answer, of course, is not a word — which speaks volumes about the integrity and worth of Heterodox Academy)

    1. That is the masking ideology. The reality is that decisions are feelings, biases, and self interests.

    2. Artie the bigot shows how you do it.

  2. There is much to be said for cleaning up a transcript to remove fillers and minor stutters. For example, I suspect the audio for “So he didn’t really mean that do as I don’t do as I say, part I can tell you that.” would make the meaning much clearer than the transcript does alone.

    1. bingo. especially if it’s a computer generated transcript.

      1. I find most computer generated transcripts to be perfectly useless except perhaps as a source of humor.

        Which I find extremely irritating, since I’m gradually losing my hearing, and some of the sites I visit have largely given up on writing things down, in favor of ‘podcasts’.

        Ironically, the worst offenders seem to be left-wing sites, that you’d assume would actually care about this sort of thing from what they tend to say.

        1. Brett. Please, let me know. I will gladly file an ADA complaint against any website that is not accessible to the blind or to the deaf.

        2. I hate podcasts also, and much prefer reading transcripts. Partly that’s hearing, but also I’m impatient – reading is faster – and if I find, on page two, that I’ve missed something important on page one I can go back and reread.

          1. That, too, (While I could read a lot faster before my cataracts, though the surgery worked, I never got back to being a speed reader. But I still read faster than most people talk.) but mainly my tinnitus is such that to understand a podcast, I have to turn up the volume to the point where I either need headphones, or I’m annoying everybody around me.

            I’m approaching the point where I’ll have to bite the bullet, and see an audiologist about getting hearing aids.

            1. I hope you get AIDS.

              1. Faulty autocorrect, I hope you get aids, (hearing aids), not AIDS.

                1. Yeah, sure . . .

    2. Very interesting point, should we be ‘originalists’ and insist on the historical accuracy of the text, or ‘living transcribers’ and try to get at the principles said?

      1. There are actually two factors here.

        The first is that transcripts routinely edit out the “um”s and “ah”s and other verbal artifacts that are typical to extemporaneous speech, and that listeners themselves unconsciously filter. Very few people speak like the written word. If you see a manual transcript that fails to do this, you’re probably looking at an effort to embarrass somebody.

        This is stuff that doesn’t end up in written text in the first place, unless somebody is writing a script.

        The second is that computer transcripts are usually speech to text without any element of understanding at all, and routinely mix up homophones, or miss sentence breaks or screw up uncommon words. Which is what makes them such jokes.

  3. When Justice Thomas visits a law school, he doesn’t spend most of his time in the faculty lounge. Instead, you will find him with the students, and he will spend hours answering their questions, engaging them in conversation, asking them about their goals in life, etc. He is a pleasure to speak with and seems to be in no rush to end his conversations with students. This alone speaks very highly of him.

    1. When Scalia visited my law school, I was not allowed access to him. I wanted to ask him about the centrality of Scholasticism in the common law, how that was illegal, how it made the lawyer profession stink so badly, how it justified arresting him for insurrection against the constitution and imprisoning him for 10 years.

      At another time, I pointed out California law required allowing all points of view in law school fora. So they shut down the school chat rooms, instead.

      1. In that tradition, Volokh allowed personalized death threats, links to porn depicting sex with animals, all kinds of rudeness. He blocked me from his blog, and then again from his Washington Post blog. I wrote to jeff@amazon.com. A Vice President for Legal Affairs restored my privileges. He has not blocked me here, but only because Reason Foundation does not do that. Also, I sent them a $500 donation, in gratitude.

        I think this is a California lawyer thing, blocking substantive dissent.

        1. Ironic? A national expert in the First Amendment is in denial about the Catholic doctrines at the heart of the common law. A strenuous free speech advocate will not allow dissent about the lawyer profession. Funny.

      2. “I was not allowed access to him.”

        I imagine a general thing….

  4. I read the Otter text and Justice Thomas mainly talks about the Declaration of Independence and not the Constitution.

    When asked if he would have been a Federalist or Anti-Federalist when the Constitution was drafted, he replied:

    Well, that’s really interesting. I don’t know, I think those were different times, I’d probably be closer to the anti Federalists. I’d be I’m not I mean, I’m not against the union. But I do think that there’s limitations. And I can’t say I was totally with Jefferson. But they, you know, I just think that we see, we see what the anti Federalists were concerned about, with the with the expansion of the Commerce Clause with the effort to expand, you know, the power of the national government and the reach of the court through the doctrines of incorporation and other theories, substantive due process. And the other branches going into areas that are somewhat attenuated from the limited powers EPA supposed to have the enumerated powers. So I think that they you begin to see in retrospect, some of the points I was reading one of the letters written by a, an appeals court judge in Virginia, I think, criticizing marshals of Chief Justice, Marshalls opinion in McCulloch versus Maryland. And what was ironic about his some of the points that he was making and criticizing the decision, and it’s pointing out how that was, would mean that the government, the federal government, the national government, would expand into all these areas. And it has already expanded into those areas. And those were like, his list of terrible’s. And it’s now our list of realities. So I think you could object I’m not going to, to be too harsh in my criticism, because that did wind up creating a country. And it is flawed. It’s very flawed, like every human institution. And I’ve been on the court for 30 years. It’s flawed. But you know, I will defend it because knowing all the disagreements, it works, it worked may work sort of like a car with three wheels, but it still works. Somehow you sort of hobble along and you recognize its imperfection. And I think we should be careful destroying our institutions because they don’t give us what we want when we want it. I think we should be really, really careful. And because I’ll say what my grandfather said, After you’ve done that, and now what, you know, what’s your next step? So The so I’m not I can’t be too forceful in my criticism of the Federalists.

    1. I’ve often said myself that the anti-Federalists have proven to be much more prescient than the Federalists, and while the Articles of Confederation were clearly unworkable, the Constitution unfortunately over-shot in the opposite direction.

      1. So do we agree that there are parts of the Constitution that have outlived their usefulness, even if we don’t agree on what parts they are?

        1. Does anybody disagree about that?

        2. Sure, and we might even agree about which some of them are.

          But “outlived their usefulness” and “repealed by implication” are rather different things.

      2. Yeah, the goofy Constitution only enabled us to be the richest, most powerful, and longest-form-of-government nation.

        Sigh…if only the founders had done a better job….

        1. I think being isolated on a continent we only had to share with two smaller, less populous countries, and not getting bombed during WWII, had a significant influence here.

          But, yes, I think the Constitution IS pretty nifty, and we’d be even better off if we were still following it. Doesn’t mean it lacks flaws.

  5. If you need a good laugh, and I mean a real belly bouncing hysterical guffaw, here it is.

    “Supreme Court Justice Clarence Thomas on Thursday criticized some in the judiciary for veering into the role of legislators and politicians, saying it’s not for judges to make policy or to base decisions on their personal feelings or religious beliefs,” CBS News reports.

    Has there ever in the history of the judiciary ever been a Justice who has voted his politics and not the law more than Clarence.

    Of course he may have meant this quote as a way to entertain all of us, so in that case no one should take it seriously, which of course, no one does.

    1. “Has there ever in the history of the judiciary ever been a Justice who has voted his politics and not the law more than Clarence. ”

      About 50-75 including Sotomayor currently.

    2. “Has there ever in the history of the judiciary ever been a Justice who has voted his politics and not the law more than Clarence.”

      Yes, every single one of them in my lifetime.

      1. Boy oh boy, are you guys going to hate the next half-century of American progress . . .

        and boy oh boy, do you deserve every moment of misery that is coming to you.

  6. I see nothing particularly exceptional in this.

    He says he puts his responsibilities as a judge ahead of his personal and religious views. Well, OK.

    1. The exceptional part is that he apparently expects people to believe this. Even his supporters in their private momments acknowledge the absurdity of this from Clarence.

      1. Perhaps we shouldn’t be so sure. Need we catalog some of the nonsense many mouth-breathing right-wingers believe these days?

    2. Josh thought this was notable, because what Thomas said roughly approximated what Josh thought justices in his position ought to say, as briefly noted a few posts over about a similar public speech by Barrett. Josh, feeling vindicated, gussied it up with some commentary here.

      That’s the only reason for this post.

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