A Night To Remember With Justice Thomas

A star-studded celebration for Justice Thomas's 30th Anniversary on the Supreme Court.

This evening, the Heritage Foundation and the C. Boyden Gray Center for the Study of the Administrative State at Antonin Scalia Law School hosted a night to remember. We celebrated Justice Thomas's thirtieth anniversary on the bench. It was truly a star-studded affair.

First, the Honorable C. Boyden Gray presented the inaugural Justice Clarence Thomas First Principles Award to Judge Laurence Silberman. I didn't know how instrumental Silberman was to Thomas's appointment to the D.C. Circuit, and later the Supreme Court.

Second, former White House Counsel Don McGahn introduced Senator Mitch McConnell. I did not know that McConnell wrote his law review student note on the judicial confirmation process. McConnell also joked that we should appoint more judges who sit in the bathtub during their confirmation votes. Thomas bellowed a hearty laugh.

Third, the highlight of the night were remarks from Justice Thomas. He was absolutely beaming with happiness. The room was full of his former clerks--or as he calls them, his "kids." Many of his clerks became federal judges, and served in the highest ranks of government. Earlier in the day, many of his former clerks spoke on several panels about Thomas's jurisprudence.

The reception was also packed with luminaries. Attorney General Meese was present, and he was sharp as ever. He vigorously applauded when McConnell assailed Roe v. Wade. (I think Meese is a fairly good litmus test of the Reagan revolution). And Judge James Buckley walked into the reception and had a glass of wine. Yes, the Buckley from Buckley v. Valeo. I don't get star-stuck easily, but I got star-struck when I shook Judge Buckley's hand. I mentioned that I always teach his case in First Amendment, and he made a comment about the partisans that tried to shut him down. What a great American.

Kudos to John Malcolm and Jenn Mascott, as well as everyone at Heritage and the Gray Center, for organizing such an amazing event.

You can watch the event here:

Comments

[Rev. Arthur L. Kirkland]

Was the Crystal Clanton Fan Club (or Crystal Klan for short) well-represented?

[Cal Cetín]

Paaarty! Woo-hoo, if you can remember it you weren't there!

[Jimmy the Dane]

It is a shame that the left was able to assassinate Scalia without repercussions. The Supreme Court could really use him right now with Thomas writing majority opinions.

[not guilty]

Assassinate Scalia? The man died alone in a hotel room of natural causes. On what do you base your fantastic assertion?

[Jimmy the Dane]

Yeah with a pillow over his face. It is on the Clinton Body Count list. Check it out there for more details.

[LawTalkingGuy]

JFC

[Rev. Arthur L. Kirkland]

This blog gets the comments it deserves and cultivates.

[WJack]

Pot - Kettle!

[Rev. Arthur L. Kirkland]

That calls for a link to Paint It Black.

[Don Nico]

While I object to the initials, I hear you.

[Cal Cetín]

When Marshall got on the Supreme Court, the years of his greatness were behind him.

When Thomas got on the Supreme Court, the years of his greatness were ahead of him.

[not guilty]

Justice Clarence (Uncle) Thomas succeeded Justice Thurgood Marshall, whose briefcase Thomas was not fit to carry. He is the most prominent beneficiary of affirmative action in American history.

[AmosArch]

If theres anything the Left is reliable at, its breaking out the same thinly veiled racism they accuse their opponents of everytime a minority escapes the plantation.

[Cal Cetín]

You touched all the race-baiting bases except mentioning that he married a white woman.

Justice Marshall was Peter Principled onto the Supreme Court, where he reversed himself on his previously-announced color-blindness principles, and gave his imprimatur to abortion, which has killed far more black babies than the Ku Klux Klan.

Justice Thomas has proven a more reliable protector of established American principles than Justice Scalia and Chief Justice Roberts (and it goes without saying is better than the liberals).

[not guilty]

Clarence Thomas had a pre-judicial career as a Republican toady, hostile to civil rights and kissing up to Presidents Reagan and Bush I. However, when it appeared that his SCOTUS nomination was imperiled, he shamelessly played the race card. Remember ¨high tech lynching¨?

If in the next life Thomas encounters real lynching victims, I hope they beat the stuffing out of him for trivializing their trauma.

[Cal Cetín]

"How dare he defend himself with our own tactics? I thought he would be above that sort of thing!"

[Bob from Ohio]

They played the sexist card against him, he properly threw a race card.

[Don Nico]

Hey, you now suppot playing the race card whenever possible; so don't complain about precedent.

[Jacob Grimes]

I found it tough to respect Thurgood Marshall after reading that one dissent in Gregg v. Georgia where he suggested that the death penalty should be held unconstitutional, despite it recently being approved in voter referendums across the country, essentially because people were too stupid to realize it didn't work.

[Martinned]

Because things approved in referendums should always be held constitutional?

[Bob from Ohio]

Marshall was a great lawyer but a poor judge. Bill Brennan's mini-me.

[Morrowind542]

Wow, this is literally the second most racist comment I've read on this blog. And that's saying something given some of the other commenters.

[WJack]

Nope, Marshall.

[Noscitur a sociis]

Well, this conversation is off to a classy start.

[Armchair Lawyer]

Our good Reverend did get the first post.

[Doug Heffernan]

This post reads like some teenager's experience of going to a Miley Cyrus (or whoever's the pop star of today) concert.

It's great that the blackman kid enjoyed all of the pomp and show of this grand gala. I suppose that I too would have been trembling had I shook the hand of The Buckley. I probably would have spilled his wine, because I would have been so uncontrollably nervous.

The trembling would have been so severe that I hardly would have been able to vigorously applaud with Meese when McConnell starting railing against Roe. I guess that I am just not as well cut out for hobnobbing with such fancypants celebrities as the blackman kid is.

I was able to watch the replay at home without too much trouble though. My pulse hardly budged, it may have even dropped a little.

[Dan Schiavetta]

With the possible exception of James Buckley, there was nobody at that event I would (be forced to) shake hands with without having to immediately run to the bathroom and wash my hands 10 times. I would vomit at being in the same room at such a collection of sleaze (Meese), incompetence (Thomas) and democracy-destroying cynicism (McConnell).

P.S. There was going to be a brief presentation on “important opinions that Thomas has been entrusted with writing”, but of course, there are none, so it was dropped from the schedule.

[Cal Cetín]

"immediately run to the bathroom and wash my hands 10 times. I would vomit"

What a powerful sense of ritual pollution. I don't even like these people (though Thomas himself is all right), but the attitude that they violate some purity taboo is really weird.

[Armchair Lawyer]

In many people, leftist-liberalism is a religion. Those who would oppose it are ritually unpure in their view.

[Social Justice is neither]

Religion with it's own built in mental disorders, what's not to love.

[Armchair Lawyer]

"incompetence"?

On what basis do you make that judgement?

[LawTalkingGuy]

Well he was entrusted with writing one of the worst decisions ever, Connick v Thompson, so there’s that.

[Don Nico]

"James Buckley"
I am happy that I played a part in the campaign that defeated him for a Senate seat

[Intelligent Mr Toad]

Did Daniel Arthur Mead make an appearance? (Did he bring his prosthesis?)

[Sarcastr0]

Thomas' statutory decisions are incredible at clarifying the otherwise unclarifiable. There is no question in my mind he has a first class legal mind.

His Constitutional jurisprudence is off the chain crazy, but he's come by that honestly - I have detected no sign the chip on his shoulder you see in all his interviews is influencing his opinions.

[Cal Cetín]

Praising with faint damns.

[Martinned]

You mean other than when he suddenly decided that regulating Twitter was OK, because they were mean to Trump?

[Brett Bellmore]

I don't know. I tend to think his confirmation trial by ordeal embittered him a bit, broke any tendency he had to moderate his opinions to gain the approval of the sort of people who'd tried to destroy him.

I'm not saying that an uneventful confirmation hearing would have left him a black Kavanaugh. But I think the one he got gave him a rather "though the heavens should fall" attitude towards compromise.

[bernard11]

Wow. What a collection of jackasses.

And Blackman is falling all over himself at the thought of being in their presence. Reminds me of his gushes over Barrett.

Is James Buckley as big a racist as his brother?

[Armchair Lawyer]

Ah yes... a celebration of the only African American on the SCOTUS, and for some reason it's "racist".

Do you even hear yourself?

[LawTalkingGuy]

He didn’t say the celebration was, he said William F Buckley was and mused if his brother had the same views.

[Armchair Lawyer]

Nothing makes me think someone is a racist more than when they happily walk into a celebration of the only African American SCOTUS Justice... Yep.

Now, imagine if instead someone said the entire celebration of an African American SCOTUS justice made them feel like they had to vomit, and wash their hands 10 times after shaking the hand of anyone there, including of course that SCOTUS justice

One might think that might be a racist comment. But nope...no comment about that.

[LawTalkingGuy]

You're still doing the "he can't be racist, some of his best friends are Black" thing. Which is kind of hilarious.

[Brett Bellmore]

Isn't, "I'd vomit if I shook hands with a black man!" kind of the opposite of "Some of my best friends are black."?

But I've never understood the practice of treating presenting evidence you aren't a racist as proof you are. It's like you want the accusation to be unfalsifiable.

[LawTalkingGuy]

It’s because you can be very racist and have fond feelings for certain Black people. It’s actually happens all the time. People who get caught doing or saying VERY racist things, like to retreat to: “some of my best friends are Black.”

https://en.m.wikipedia.org/wiki/I%27m_not_racist,_I_have_black_friends

Look at Lee Atwater: dude tossed around the N word while he was explaining how he created a more subtle form of racist politics as part of the “Southern Strategy.” But he also famously loved and jammed with Blue’s icon BB King.

[David Nieporent]

That's a poorly written misunderstanding of the "Some of my best friends are black" phrase. (TBF, maybe it is accurate with respect to the phrasing they use — "I'm not racist; I have black friends" — but they attempt to equate to the "some of my best friends are black.")

It's a good example of what happens when the origins of a phrase are forgotten. Having good friends who are black does provide strong evidence that one isn't racist, so mocking people for saying it doesn't make logical sense. But it's actually part of a larger joke, which explains the irony. The original joke was, in the early days of the civil rights era, someone would say, “I can’t be a racist because I have black friends.” And then when questioned about their identity, he’d list his maid, his gardener, his chauffeur. The point of the joke was not that he was racist, but that he was so clueless that he didn’t realize the difference between his employees and his friends. Over the years, that has been forgotten, to the point where the non-ironic statement “I have black friends” is treated as though it were the ironic one. Having actual black friends is evidence of non-racism. (Not conclusive proof, but evidence.)

[LawTalkingGuy]

Fair enough.

[Armchair Lawyer]

"he can’t be racist, some of his best friends are Black"

He "can't" be racist? No. But it certainly makes it less likely. And in the context, where there's no other information...well, it doesn't make a lot of sense.

Racists aren't often known for hanging out with the race they dislike. They aren't often known for celebrating the accomplishments of people of the race they don't like. They aren't often known for having close friendships, professional and personal. It's really not something they usually do. There are exceptions, to be sure. But in general...not so much.

Some of those exceptions might include attending a party for a prominent African American and noting that he's the first intelligent, well-spoken African American out there. That might be an indication that someone is racist. Saying that if you had to shake a prominent African American's hand, you'd feel the need to wash it 30 times afterwards....that might be an indication you're racist.

But just attending a party for a prominent African American....usually not a sign they are racist. And thinking that someone is racist because they attend such a party? Doesn't make sense.

[LawTalkingGuy]

"And thinking that someone is racist because they attend such a party? Doesn’t make sense."

That's not why he thought James Buckley was racist, as I already explained to you.

[Armchair Lawyer]

And yet...in the context...of being in a party to celebrate an African American.

It didn't make any real sense.

[LawTalkingGuy]

It makes perfect sense. William R Buckley was a segregationist in the 50s and early 60s. He wrote about it in National Review. He eventually softened his views. William F Buckley’s brother was James Buckley a New York politician and former DC Circuit Judge. The OP wondered whether he shared his brother’s racist views, notwithstanding the fact he was at a celebration for a Black man. It’s not that hard.

[bernard11]

I didn't say I thought so because he went to the celebration. In fact, I didn't even say he was a racist.

I just pointed out that his brother was, and asked whether he shred his brother's views.

[bernard11]

I hear fine.

Can you read?

[LawTalkingGuy]

Thomas hanging out with a bunch of partisan hacks celebrating him? Well I guess we’ll be treated to a bunch more “We’re not partisan hacks” speeches from the Justices.

[LawTalkingGuy]

And their accompanying fawning Blackman posts.

[Ed Grinberg]

I am not particularly religious, but if there's a God, I thank him for Justice Thomas.

[Longtobefree]

Who let all those unmasked white guys in?
(seriously, where was this held that there are no masks?)

[MaddogEngineer]

The comments here denigrating Justice Thomas and this Heritage Foundation event further reinforce this old adage:

Conservatives think liberals are mistaken. Liberals think conservatives are evil.

Can't just disagree in the battle of ideas, but have to assign negative/malicious intent to the worldview. It helps explain why some on the Right have embraced the Trump mean tweets, gravitating to anyone who would fight fire with fire.

[LawTalkingGuy]

"Conservatives think liberals are mistaken."

This is the dumbest thing I have ever heard. Have you ever listened to conservative politicians and pundits talk about liberals? Did you not notice that Trump called his political opponents "evil" and "very bad people" A LOT. Do you think Eric Swalwell would be getting messages from people describing themselves as part of "Trump Nation" saying his family should be killed and fed to dogs because they think he's mistaken?
Have you read some of the comments on this very blog? There is a dude who literally is going on about the "Clinton Body Count" upthread. Are you absolutely delusional?

[CJColucci]

It's projection all the way down.

[MaddogEngineer]

Sigh. I was referring to before Trump, and why Trump became a phenomenon. But yes, by all means, tell me that your side is pure. Eric Swalwell is a guy who suggested it might be okay to nuke American citizens, so I don't understand how bringing him up helps your position.

I'm not denying there are bad people everywhere. But you didn't hear Paul Ryan talk like Bernie Sanders. Why do the Trump people hate George W. Bush so? Many reasons, but chief among them is that he never fought back against unfair criticism. Of course you're probably one of those people who think he is a war criminal ("blood for oil!", "lied us into war!"), and see nothing wrong with that accusation. It's why Bush's approval rating when he left office was at 32%, because some his base abandoned him. Not especially because he was doing a "bad" job. But because they were pissed off he wouldn't defend his own administration.

The current administration got started with cries of Jim Crow 2.0, as if trying to regularize new methods of voting that grew uncontrolled like weeds was somehow the same as turning firehoses on Birmingham bus boycotters.

I'm a Never Trumper who is glad he's out of office, but has had to put up with nonsense for YEARS, hearing people call me racist because I believe simple stuff like racial quotes are unconstitutional, or a bigot because I don't think the 14th Amendment includes a right to same-sex marriage. Being for limited government doesn't mean you want poor people to die, as many prominent elected Democrats have suggested over the past several years. But yeah, mean tweets. And Trump and many of his supporters don't believe in limited government, which is why they are an anathema to me.

[LawTalkingGuy]

I'm not saying my side is pure. I am saying you are delusional if you think conservatism ever thought liberals were merely "mistaken." I mean come on. That's just ridiculous. Did you not pay attention to the last 25 years of right wing politics and media?

[MaddogEngineer]

I have, which is exactly why I wrote what I did. I can only assume you haven't. You're probably referring primarily to the Rush Limbaugh. Maybe you're so outraged about having him ridicule your beliefs, you didn't notice that his schtick was making his points with humor not venom. Of course he talked about the Left appealing to low information voters, but in the context of how those policies mostly failed them. Calling people stupid isn't nice, but it's not the same as calling them evil.

Right wing politics have mostly dealt with ideas and principles (free markets and limited government), not accusing the other side of trying to kill people. How often did Democrats run commercials about pushing grandma's wheel chair off a cliff when people like Bob Dole or Paul Ryan talked about dealing with entitlement programs? Dick Durbin comparing Guantanamo Bay to gulags, Nazis and Pol Pot. Net neutrality was going to kill people, then it was the Trump tax cuts, and obviously climate change (Senator Manchin comes in for some of the wrath too now). I've lost track of the number of times this rhetoric has been deployed. It wasn't just that people believed wrongly. It was and is that believing in conservative principles made you a bad person. Republicans don't care about minorities and poor people, they hate them for being different want them dead. Another of Limbaugh's schticks was trying to coax self-identified Democrat callers over to his side with conversation. Full disclosure: I was never a fan of Limbaugh and could only take him in small doses. That doesn't mean I can't appreciate the man's talents. It made me both sad and disgusted to read some of the awful random nobody liberals on the internet said about him when died. It's the same unkind crassness that Trump's revels in, and why he disgusts me.

You can't have it both ways: complaining about mean tweets as a unprecedented low in American politics, yet saying it's always been ever thus. Again I'm not denying there is overheated rhetoric on all sides for years. But just other day, one of the trans protesters outside Netflix HQ spoke of a trans people being in the middle of a holocaust. Gee, I wonder who they think is responsible for that?

[M L]

The best Justice of all time.

[Earnest]

Ah yes one of our apolitical, not-partisan-hack Justices being lauded by the biggest partisan hacks of our time for the victories he's delivered to said partisans, specifically lauding his abortion jurisprudence while an abortion case is pending before the Court, covered breathlessly by a partisan hack who in a few days will post something complaining that it's the media's fault that the Court is facing a legitimacy crisis.

[Commenter_XY]

Justice Thomas will go down as one of the great justices, IMO. To me, he is an authentic American hero. His personal story, his lived experience, and how he got to SCoTUS is gripping (see the documentary). Clarence Thomas has an incredible life story; that grandfather of his was something else. Whoa! 🙂

I am frankly disappointed in some of the comments I've read.

What I admire about Justice Thomas is his willingness to stand alone, when necessary, for what he believes. There is no 'get along to go along' with Justice Thomas. He articulates his legal reasoning and principles, and stays with it. He is steadfast. We could use a little of that in America right now - especially adherence to principles. And his perseverance in overcoming adversity is something we should all emulate.

Looking forward to another decade (or two) of Justice Thomas.

[Earnest]

Although I disagree with just about all of Justice Thomas' opinions, I agree that he is generally a principled jurist whose intellect towers over, say, Alito or Breyer.

[David Nieporent]

The problem is that he's a bad judge. I don't mean in the sense of being dumb or incompetent, or whatever slurs people trot out. I don't even mean in the sense of disagreeing with all of his views. I mean in the sense of not respecting the proper role of a judge. His "Fuck stare decisis" standpoint (I might be paraphrasing slightly) is not compatible with judging. Stare decisis is not an inexorable command, but it is not something to be tossed aside lightly just because one wants to show how clever one is. (Especially in statutory cases.)

[QuantumBoxCat]

"A Night To Remember With Justice Thomas"

Thank heavens for Lawrence v. Texas

[LawTalkingGuy]

I’d slightly tweak that to suggest you can still be a “good” judge even if you have a “fuck stare decisis” streak to you, so long as that’s what parties are actually asking you to do. One thing that makes Thomas not a good “judge” is he doesn’t always judge the actual case and arguments before him, he just comes up with something else entirely in way too many cases. Gorsuch is getting like this too. Case about the right to effective assistance of counsel: “Gideon was wrong actually.” Case about personal jurisdiction: “International Shoe was wrong actually.”

Judging things no one ever asked them to judge in the first place.

[LawTalkingGuy]

Oops meant as a reply to Neirporent

[David Nieporent]

Yeah, I don't disagree with that.

A couple of other examples, involving Thomas's recent frolics about speech. A couple of terms ago, arguing in a dissent from denial of cert, that NYT v. Sullivan should be reconsidered in a case where nobody asked the Court to reconsider that case.

And then there's the Knight Foundation case this past term about whether then-President Trump could block people from his twitter feed. The court correctly dismissed the case as moot with the change of administrations and the Twitter ban on Trump. Thomas concurred. And yet Thomas decided to muse for a dozen pages about common carriers and the effects of § 230, despite the fact that none of that was briefed or relevant to the case.

[Commenter_XY]

I think I understand where you and LTG are coming from. Is this a fair restatement of where you both stand: Judges should keep decisions/authored opinions only confined to the legal question/issue presented at argument. No more, and no less than that.

[LawTalkingGuy]

Sometimes it’s good and important to stake out a different view. Or say: hey our precedents in this area have kind of gone off the rails, we should reevaluate. But the problem with Thomas is he does this in practically every area of the law, no matter how well established, how fundamental, or on the flip side, no matter how technical and unimportant.

[David Nieporent]

Malwarebytes v. Enigma. Thomas decides to argue — in a statement respecting denial of cert, meaning that it's not even relevant to the case — that all the hundreds of lower courts that have interpreted § 230 the same way must have done it wrong. There's no circuit split he's addressing. And since it's a statutory issue, Congress could redress it if courts were getting it wrong. But Thomas decided as a policy matter (while accusing lower courts of infusing their interpretations with policy preferences) that he didn't like the universal interpretation, and wanted to let everyone know how clever he was.

Of course, now lots of litigants have started citing this meaningless dicta by Thomas in making their clearly-foreclosed-by-precedent arguments. But Thomas didn't care what mischief his musings would cause.

[LawTalkingGuy]

Yeah. I remember that one. And you’re right sometimes the musings can be harmful when they’re staking out a brand new position in something that only recently became a controversy because of culture war politics (which is what almost the entire fight about Section 230 has to do with)

[Commenter_XY]

LTG & David Nierporent....I just want to say to the both of you that this was a useful and productive exchange. I now understand where you are coming from, and why you object (object is too strong, but the best I could do at 530 in the morning and one cup of coffee, and besides, this is a legal blog...heh, heh) to Justice Thomas.

LTG, one point you made really stood out to me: Sometimes it’s good and important to stake out a different view. I agree. Your objection is to degree. It is a difficult thing to want Justices to stake out new and different views, but not so much that they create judicial havoc. That is a tough line to draw.

[Commenter_XY]

LTG...I think I understand. See my response to David Nieporent.

[fafalone]

Such non-political. Big non-partisan.

[bernard11]

Yes. No partisan hackery here.

[Rev. Arthur L. Kirkland]

What really matters is who wins. The clingers don’t. Let them have their night of back-patting and camaraderie, an evening when they can feel like part of the relevant mainstream rather than hopeless losers.