The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On Friday, Justice Thomas was interviewed by John Yoo, his former law clerk, at an event in Dallas. A recording is available here. (Update: the video link no longer works.) I've transcribed parts of the video through Otter, and will post some of the highlights here.
First, Yoo asked Thomas if there is "anything going on at the Court these days." Thomas let out a booming laugh. A few moments later, he got to the question:
The whole idea that your point about institutions, I think we are in danger of destroying the institutions that are required for a free society. You can't have a civil society, a free society, without a stable legal system. You can't have one without stability and things like property or interpretation and impartial judiciary. And I've been in this business long enough to know just how fragile it is.
Now when Chief Justice Roberts speaks of the Court as an "institution," he approaches that concept from a PR perspective–5-4 decisions are bad, incoherent 9-0 decisions are good. Thomas could not care what final votes are. Rather, he worries about attacks on the Court by the political branches, and more recently, from within. Next, Thomas turned to the leak.
And the institution that I'm a part of, if someone said that one line of one opinion would be leaked by anyone in you would say that, 'Oh, that's impossible. No one would ever do that.' There was such a belief in the rule of law, belief in the court, a belief in what we were doing, that that was verboten. It was beyond anyone's understanding, or at least anyone's imagination, that someone would do that. And look where we are, where now that trust or that belief is gone forever. When you lose that trust, especially in the institution that I'm in, it changes the institution fundamentally. You begin to look over your shoulder. It's like kind of an infidelity that you can explain it but you can't undo it.
This quote is quite revealing. Thomas now seems to think there are members of his own Court he cannot trust. We can put to rest the notion that a conservative clerk leaked this information. If a Thomas clerk or an Alito clerk or a Gorsuch clerk gave the opinion to Politico, Thomas would not be looking over his shoulder.
Second, a member of the audience asked Thomas to define stare decisis:
I think there was a word that was used today. That was really interesting, because I think it's a central word, and it's 'courage.' The way that Walter Williams did it in one of his books from the 1980s is 'All It Takes Is Guts.' And I think a lot of people lack courage, like they know what is right, and they're scared to death of doing it. And then they come up with all these excuses for not doing it.
In several recent decisions, Justice Thomas and the other conservatives have alleged that Chief Justice Roberts and Justices Barrett and Kavanuagh lack "courage." I've written about this theme in my essay, Judicial Courage. Is Thomas here talking about Dobbs? Or speaking more broadly about stare decisis? Next, Thomas analogizes "stare decisis" to waving a white flag:
So even with stare decisis, you will see in a lot of those instances where people start, they run out of arguments. I always say when someone uses stare decisis, that means they're out of arguments. And now they're just sort of waving the white flag. And then that's I just keep going then. I think if you have an argument, you make it, but I'm not going to go along with something. If you buy that argument then Plessy should never have been overruled. I mean, you cannot overrule Plessy and when you raise that with them, then they don't they well, they give you err, ahh, err, ahh, err, ahh.
Third, a member of the audience remarked that Justices Scalia and Ginsburg got along well. He asked how society "can we foster that same type of relationship within Congress and within the general population." Thomas did not answer that question, but instead went right back to his Court. And he explained that the Court has changed since 2005.
Well, I'm just worried about keeping it at the court now. This is not the court of that era. I sat with Ruth Ginsburg for almost 30 years. And she was actually an easy colleague for me. You knew where she was and she was a nice person to deal with Sandra Day O'Connor you can say the same thing, David Souter, I can go on down the list. Nino was, he could be agitated but then he forgot he was agitated. But it was it was a the court that was together 11 years was a fabulous court. It was one you look forward to being a part of. What you I go back to the point I made about the institutions. What you've got to be concerned about is just like you see the law clerks–Remember the last four appointees of the courts, including the newest one I knew as law clerks. These law clerks with these attitudes–
At that point, John Yoo interrupted Thomas and said, "I'm available by the way if you're looking for more." Thomas replied that Yoo would have some confirmation problems. I'm irked that Yoo interrupted Thomas at this juncture, because Thomas was about to say something concerning the attitudes of Justices Gorsuch, Kavanaugh, Barrett, and (Justice in waiting) Jackson–four Justices whom he knew as law clerks. What is Thomas saying here? Why are his new colleagues so different? And what difference does it make that they were law clerks?
I can speculate. For most SCOTUS clerks, their careers peak when they are in their late 20s. They achieve the pinnacle of their power. And they spend the rest of their lives pining for that moment of glory, hoping, dreaming to once again taste the nectar and ambrosia on Olympus. Indeed, some of those former clerks spend their every waking moment trying to get back on the Supreme Court–the Little Supremes! Now, at least four of those clerks, plus Kagan, made it back to the peak. Thomas was suggesting that the attitude these former clerks bring is problematic. I really, really wish Yoo did not interrupt the boss here.
Thomas returned to the "attitude" point, but his point wasn't entirely clear. It seems he thought better of what he was saying, and changed direction.
I just think that they [the law clerks] bring–that anybody who would, for example, have an attitude to leak documents. That general attitude is your future on the bench. And you need to be concerned about that.
Again, I did not fully understand the point, but it was something negative about former clerks becoming Justices. Thomas once again said the old Rehnquist Court was different than the current Roberts Court.
And we never had that before. We actually trusted–it was we may have been a dysfunctional family. But we were a family. And we loved it. I mean, you trusted each other. You laughed together. You went to lunch together every day. And I can only hope you can keep it. So it's what was it Ben Franklin that said, we gave you a republic if you can keep it. And I think that you have a court and you hope you can keep it.
Mind you, this was the Bush v. Gore Court! And that was more functional than the current Court.
Fourth, Yoo asked about what "changed between that court and the current one?"
I think what's changed in society, modernity of post modernity. I think attitudes have changed. I think when I got to the court you still had World War Two veterans on the court. You still had people like John Stevens who was a nice man. You had Byron White, who was a Rhodes Scholar when Rhodes Scholars were real athletes and number one in their class, NFL football player, Navy veteran. And you had Sandra Day O'Connor. That's a different generation and we were living off the sort of the treasures of that generation. That generation has gone. I'm the only member of the court ever to have been born in 1940s. Okay, everybody else is subsequent to that now. And the other ones I got to the court they were born in the 1930s and the 1920s. And we're now dealing with post World War two generation. And as you see it play out in society, I think you're going to see play out in the institution. So what's the difference? It's a different set of people who grew up in a different era. And I don't know what where that's gonna lead you but we know it's different.
This answer had something of a "get off my lawn" vibe to it. I'm not exactly sure what point he is making, other than that the Baby Boomers and Gen Exers are culturally different than the Greatest Generation. This Simpson's clip comes to mind–fast-forward to 1:51.
Grandpa Simpson said it best: "Every generation stinks but ours."
I do not think that Thomas was suggesting that Roberts was at fault. But Roberts's leadership has not contributed to a functional institution. Quite the opposite. Unlike Justice Ginsburg, no one knows where Chief Justice Roberts is. To quote Aaron Burr, "Talk less; smile more; don't let them know what you're against or what you're for." NFIB v. Sebelius may have saved the ACA, but the controlling opinion destroyed the Supreme Court as we know it. The anonymous conservative told Politico:
"There is a price to be paid for what he did. Everybody remembers it,"
Roberts won the battle, but lost the war. Now Thomas is making this point explicitly.
Next, an audience member asked about Senator Jack Danforth, for whom Thomas worked. Danforth said that conservatives should never do to liberals what liberals did to Justice Thomas. Thomas jumped in:
You [conservatives] would never visit Supreme Court Justice house's when things didn't go our way. We didn't throw temper tantrums. It is incumbent on us to always act appropriately and not to repay tit for tat.
Another audience member asked if conservatives are treating liberals better than liberals treated conservatives. Thomas jumped into the Garland and Kavanaugh nominations:
Well, I think everybody you can find an exception to every generalization, but I think if you look around you will see that they [conservatives] have never trashed a Supreme Court nominee. The most they can point to is that Garland did not get a hearing, but he was not trashed. And it was a rule that Joe Biden introduced by the way, which is you get no hearing in the last year of an administration. That was not the rule before then. But at any rate with that aside, I'm sure you can find–you can quibble, but you will not see the utter destruction of a single nominee. You will also not see people going to other people's houses, attacking them at dinner at a restaurant.
We also learn that during the Kavanaugh fiasco, protestors mistakenly attacked the cars of Justices Kagan and Ginsburg. (Those cars presumably pulled out of the garage at the back of the Court.)
Throwing things on them, which we had when Brett Kavanaugh was confirmed. They were throwing things they didn't realize it was Justice Ginsburg and Justice Kagan. They were throwing stuff on the car that when they left, and you hear very little that they were banging at the door of the Supreme Court. Like it was storming the Bastille or something and but you hear very little of that and that's under reported. I don't think that I can tell you that everybody has been perfect, but I've seen no conduct that match them. And perhaps you have and if you did I stand corrected.
You should watch the entire speech. It is our best insight to date about the sentiments inside the Court.