Justice Clarence Thomas

February 5, 1999

Justice Thomas: Thank you all very much and I would like to thank Peter for stealing my speech. You know a pronoun here or there and it’s done.  So I can sit down.

Seriously, I would like to thank Dr. Schramm for his kindness, for his patience over the past year or so, and for taking the risk of scheduling this event in February.  Sometimes I forget how risky these things are.

I have proposed to Dr. Schramm that tonight, as I am becoming, as I have said, increasingly averse to lecturing people.  I would rather spend my time lecturing a seven year old who seems to always respond with, “I know. I know.”  “Then why didn’t you do it?”

It seems more beneficial and fruitful to actually respond to things that you are interested in and to try to direct the conversation in that way.  But I do want to make some more formal remarks just briefly before we respond to your questions.

I’d like to first recognize and give thanks in this audience to my good friend Ken Masugi.  Many of you don’t know this, but when I was at EEOC I had quite a large staff and room for speech-writers and all sorts of interesting people.  He worked with me in the mid 1980’s, and we spent many long hours discussing the founding of our country, the framers, natural law, libertarianism, objectivism; you name it, we talked about it.  It was a wonderful, wonderful time.  We also had at that time Professor John Marini who joined us at EEOC. It was a delightful time.

I would also like to thank publicly here in Ohio Judge and Mrs. Nelson for lending me their son Caleb for a year as a law clerk.  What a brilliant, delightful young man.  He is now a professor at the University of Virginia Law School, and I think they are lucky to have him.

As Dr. Schramm indicated, I have now been on the court for seven and a half years, or almost seven and a half years.  Perhaps my most accurate timekeeper is what has happened to my hair.  Of course I have to be careful complaining about it because some people say, “Well, at least you have hair.”  But it has turned white like my grandfathers and I wonder sometimes whether it is the job or just time.  I would like to think it is more the job than time, but you can see the difference, or at least I can.

You can also see the difference in my girth.  I don’t know what happens there.  I am convinced that a little guy sneaks into my closet at night and shrinks my clothes and then sneaks over to me and adds a little extra weight on me.  He is a busy little guy.

One of the things that has happened over the past seven and a half years is the comfort with which I am able now to approach the court–the comfort with which I am now able to sit with my colleagues in a friendly, courteous way–a professional way.  That has been one of the delights, I might add, about the court.  Unlike so much of what we see in a contentious society, at least there, right or wrong, agree or disagree, there is the appropriate solemnity and gravitas to what we do.  And in a cynical environment, we see no cynicism. Never.  Not one drop.  As I talk to many of my colleagues who are judges, some of whom are here tonight, I think we all share that observation: That it is to serious for any of us to be cynical, and indeed it is to serious for any of us to trivialize it with extraneous matters, such as emotional outbursts.  So it is in that vane that I speak of my colleagues.  I once turned to my friend Justice Souter and I asked him,  “What was it like? What did he think? What did he say to friends who asked him about working with us?”  He said, “He tells them that it is like working with eight friends.  I know that we all, even with our friends, have those days. But in the end it is like working with eight friends.”

Now I know there will be the cynics that say well that is all fine and good, but to them I say you decide these cases with eight other people and not like them and see how hard that is.  You live your professional life with eight other people and not like them and see how difficult that is.  You take this precious document and affect it and not like the people with whom you do it, and see how you like it and how you like yourself.  That we could allow personal outbursts, that we could allow personality differences to control this document.  How would you like it if I said to you tonight that one reason that we can not appropriately interpret this document is because I don’t like two or three members of the court?  Well certainly you could think no better of me. And certainly you would fear, even though you may fear tonight, you would certainly fear for this document, our Constitution, if personality differences and emotional outbursts were to control. And I will assure you that they don’t.

Last week, or the week before last, I had an opportunity, with my law clerks, to do something that I haven’t done in my seven and a half years on the court, or almost seven and a half.  I don’t know how many there are–the only number I am only looking at is the 45 I intend to serve.  We decided upon request of someone to look for a comment I had made about the independent counsel statute having nothing to do with what is going on in Washington now.  Because even in the madness of my own confirmation, that point, that discussion about the independent counsel statute stood in my mind.   You all remember the case up holding that statute is Morrison v. Olsen.  Senator Kennedy gave me a little bit of a going over because of what I had said in a speech at the Cato Institute about this statute and that case.  I won’t go too much in to it but I do want to read you something.  Then I want to go back to this document, not the Constitution, but the Declaration, for a brief moment.

Senator Kennedy says to me, “Why shouldn’t we have the capability when there is a wrong doing in the executive branch, why isn’t it important that we maintain the majority opinion in the special prosecutor case?”  That is Morrison v. Olsen.  And I respond in a polite way, “I think that is a fair question.  I think it is very important that we be able to keep government honest.”  I am summarizing.  But than I go on to say this: To the point that I was trying to make in having concerns about that statute and that position was that when you have an individual, and I am going exactly the way I did it there, the way that our government has protected the individual is a tension between the branches, that you have three branches, none really dominating the other, and that when you have one member or one individual that is not directly accountable to either branch, then the consequence could be, and I thought in this case, again speaking broadly, the consequence was that individual rights were at stake.  The individual rights of the individual who is investigating, not responding to Congress or responding to the executive, but to a person who is not responding to either.

I further went on after additional questioning to say the point that I making is very simply this: That it wasn’t that it should not be determined or that wrong doings should be ferreted out. Nor did I indicate that perhaps there could not be that the executive necessarily totally oversee itself.  I don’t think that that was my point, and I go on to say to him that the lack of accountability undermines the individual freedom of the person who is being investigated.  Of course that was resoundingly poo-pooed.

My point is, as I stand before you, this. And it is not necessarily this statute but as a point of departure from that statute.  Our Declaration of Independence reads in part as follows, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights governments are instituted among men deriving their just powers from the consent of the governed.”  One way to assure that government be at the consent of the governed was to make sure that we have three branches of government.  It was to protect us and secure our liberties so that we at one point would not be at the mercy government or at the mercy of those that wield the power of government.  That is the beauty of the Ashbrook Center because it teaches just that point.  A point that is forgotten until self-interest is on display.  I do not believe that self-interest is a legal or constitutional principle on which we should decide cases.  It is a matter of principle, no matter whose ox is being gourd, that these principles be upheld.  I believe as Thomas Moore said to Roeker, that yes he would up hold the laws of England to defend the devil for his own safety’s sake, for our sake we must be principled.  For our sake we must understand the principles that underlie our Constitution.  How else could we overthrow slavery? How else could we recognize the status of human beings as human beings? How else could we be a self-governing nation, a nation that leads itself, not be lead?

Ronald Reagan said some years ago, I believe on a trip to Japan, that we had the one country were rights do not flow from the government–the one country where are rights do not flow from government.  When I was chairman of EEOC and I was feeling sorry for myself, contrary to those very kind and wonderful words that Dr. Schramm said about me, I called up a friend and he reminded me that the things that were important to me did not come from government, they came from God. That these rights, these rights, did not come from government. That we consented with these rights to be governed.  Perhaps it is that backdrop that Dr. Schramm is talking about.  And so we perhaps differ from many others.

I often wonder what happens if the limitations imposed on government to secure our rights and our liberties are undermined or compromised.  What if government suddenly breaks all its boundaries, all its borders, all its limitations, what kind of nation then do we have?  Are we still being governed by consent? Or are we being dominated and coerced by government?

I know I write some eye glazing opinions. Someone says I show no personalities in opinions.  I never thought it was some prose award we were writing for. If I wanted beautiful prose, I could read Faulkner, perhaps I could read Hemingway.  But I do not read legal opinions to be entertained.  I read opinions to understand the law, to be lead, to be guided.  Perhaps it is dry, but it has to be precise, not cute.   Cute opinions can lead us astray.  Glib terms, glib approaches.  We are not there to entertain, we are there to decide, to be precise.

But in those opinions, what I’ve attempted to do in areas of the dormant commerce clause, the commerce clause, is to talk about the boundaries, the limits.  Did I claim infallibility? No, I don’t speak excathider.  I simply say, “What about the limits?”  What are the consequences if there are no limits, if there is no more to federalism, if there is no discipline in statutory construction or discipline in constitution analysis?  A group came to visit me at the court and suggested to me that my approach to constitutional analysis was somewhat cramped.  I don’t know what that word means, but I know that it is not a compliment.  Well, I said, “Well, you and I do not agree about much about the world, so I’ll tell you from now on I’ll do whatever I want to do, when I want to do it, at whim and fancy, for the next forty plus years. Will that satisfy you?”  “Oh, no. No.” Then what shall be my discipline, what constrains me?

Well, the principles of constitutional analysis then didn’t look so cramped, they looked structured.   They made sense.  I was in a university a few of years ago, and a young man told me that I was quite parsimonious in my approach to the constitution.  There is a synonym to that word parsimonious that I cannot use.  I do not want to get into that much trouble.  But he said that I, as a powerful member of the court, could do anything I wanted to do, and I was just simply refusing to do these things.  I could be philosopher King. Wasn’t I a Supreme Court Justice?  I said, “I am constrained by Article Three of the Constitution.”  He said, “No you’re not. Those are just niceties.”  So I told him, as a student, “you are hereby expelled from this university.” And he said, “You can’t expel me. You are not the president.” And I said, “Uh huh. Constrained by Article Three, am I not?” Then he understood.  But the point is simply that, with respect to the cases that I’ve tried to parse out, I try to simply raise, and I continue to try to raise, the question of the limitations that provide for our freedoms and our liberty.  Now that could well be wrong. I am as fallible as anyone.  But I do believe that it is necessary to engage in this undertaking.

I have been asked, and I am a little bit amused from time to time when people say, “Did I have any sort of courage to do things?”  It was said recently, and Dr. Schramm was nice enough to suggest that, but I think I see it a little bit differently than that.  I do not think that I am particularly stronger or more courageous than anybody else.  I wonder if I was called upon in World War II to storm Omaha Beach, would I have been able to do that?  That to me is courage.  Would I have been able to fly a fighter plane in harms way?  That to me takes courage.  Would I be able to, as a rescue team, to climb a latter up ten, twelve stories to rescue someone from a raging inferno?  That takes courage.  Would I be able to jump into the frozen waters of a river to rescue a drowning person? That takes courage.

You know everyday we look around us, there are courageous people.  There are people who get up and go to work every day. That takes courage.  I look at the people in the neighborhood that I grew up in, who rather than quit, lived a discipline life, went to their job and raised their kids.  That takes courage. It takes hope.

So I don’t particularly see that what I do by trying to be clear about this document puts me in harms way.  Indeed, I see it as nothing more than living up to an oath that I took to do just that.  I have a lifetime appointment, wonderful place to work, wonderful colleagues, great country.   What could be better? That’s not harms way. That’s not the cold of a war zone. There are no hails of bullets. There is no possibility of instantaneous death–just a little criticism. What is that?

I don’t know how many of you have had the chance to go to Gettysburg, but if you have a chance, I ask you to go there and stand where Lincoln stood.  You could not but be overcome.  If you have an opportunity and you go to Washington and you stand in Washington D.C. and imagine Lincoln during the Civil War:  Pro-slavery Maryland, pro-union Maryland, Virginia, pro-slavery, anti-union, confederate. And in the middle, Lincoln. Imagine what courage that took.

But on the other side of the equation at Gettysburg, I always wonder about Picketts charge. If you look at this wide expanse of a field you see where the Union soldiers were–perched on the good ground, the high ground.  Those who fought on the other side for a cause of which I did not agreen with, but who, as they say, were fighting for their rights, marched in step to a certain death across Picketts field.  Who among us knows of any cause for which we will march across a Picketts field?  I am certainly not called upon to do that.  That takes courage, whether your cause is one with which I agree or disagree. But it takes a lot of courage, a lot more than I think I have.

But I do believe, that in these confusing times, that when so much of the tradition that we took for granted, those of us that now turned fifty, are turning fifty are over fifty, there is a lot that we took for granted that’s being questioned now.  Are we willing as a people to stand up and say that’s wrong?  Are we willing to say that no matter how far we have gone, whether in constitutional analysis or political theory, we think that that’s wrong.  We all know in this room to a person that there are certain things that we can not talk about without paying a price this day.  There are certain words that you can not use without paying a price today.   Do we shrink from that challenge or do we stand up?  I don’t think that takes as much as it takes to storm Omaha Beach.

And I think there is a bottom line question. Do we have the courage to defend what it took, great courage, to secure in the first place, and that’s our liberty and our country. Or have we reached the point were we have no spine to retain our own liberties.  And then if we don’t, then we have no right to have them.  And one thing that I like about this Center and what it teaches is the understanding of how important these freedoms are.  To see wonderful words like liberty exalted rather than trivialized, to see it given its full meaning and understanding, rather then reduced to whether or not I can slap some obscene tattoo on me and have the liberty to do that.  Liberty is a much richer, fuller term.  It’s up to us and we know it. It’s up to the next generation to learn about it, even if we are the exception to the rule. It is up to those of us who have positions of authority, who have taken solemn oaths to defend this, to interpret it impartially, to do just that, without whining and without complaining.

I keep a bust of my grandfather over my desk, and whenever one pang of self pity even remotely touches me, I look at him, and I don’t know about you all, but if he were alive today, I know exactly what I would call him, I’d call him what I always called him, and that’s daddy.  That might sound southern but boy that has full meaning doesn’t it.  But if he, a man who knew no parents in his adulthood, who never went beyond the third grade, never complained under segregation, then by what right do I complain?  There is a man with courage.

And I think that if we learn about our history and that those who went before us and we understand the price they paid and how strongly they felt about securing this nation with its principles, it would shame us into a position of courage where we would have to defend this wonderful nation.  We are blessed to be here, and perhaps that is a little bit serious, perhaps it is too serious at this moment, but I do believe, as I tell my law clerks, there is no use doing this job that I am doing for any other reason than because I believe this document must be secured, must be defended, must be protected, for my safety’s sake.  Thank you all.

Marvin J. Krinsky: Dr. Schramm will read your questions and Justice Thomas will answer them from up here.

Peter W. Schramm: First question. Justice Thomas: Do you think Supreme Court justices should retire at a specific age, for example, 80 years old?

Justice Thomas: I guess I don’t have a real thought about that, except that you would have to amend the Constitution.  There are already limitations for judges who cannot function in their positions.  But as far as age–having gone there with individuals on the court who were much older than myself, in fact almost as old as my grandfather, I think it would be a bit of a waste.  The people that I have met there who are in their 80s were just tremendous people. They have a wealth of knowledge about the Constitution and the court that would simply be lost.  I don’t think age is necessarily the predictor of whether or not someone can do this job.

Peter W. Schramm: I’m beginning to agree with you on that, by the way.

Sorry.

Justice Thomas: No you’re not.

Peter W. Schramm: Any comments on the current apparent lack of attention by all parts of the Federal Government to the Tenth Amendment?

Justice Thomas: No.

Peter W. Schramm: Next question.

As you know, there are some questions that he cannot answer, will not answer. But I will read them in any case.

Do you watch TV news. . .

Justice Thomas: No.

Peter W. Schramm: The question continues  . . .such as CNN or read newspapers or do you attempt to avoid the media coverage of events so as to insulate yourself from their opinion?

Justice Thomas: I try to watch Speedvision. I try to watch ESPN and the Deuce.  I occasionally stumble into the news.  I read newspapers very quickly. I read the New York Post, usually.  It has a fabulous sports page.  There was the game were the Miami Dolphins were playing the Jets and Marino pretended that he was going to spike the ball on the one yard line, and he threw a touchdown pass and the Jets were all waiting for him to spike the ball.  The headline on the sports page of the New York Post was  “Suckers.”  That says it all, you know.

I keep up with the news.  My wife says she is amazed with how much news I am aware of, and I don’t know where I get it. But I do keep up with it.  I don’t read about the court. I don’ t read about people who write about the court.  If you are there, why read about what they said.  They aren’t there, so what do they know.  And I don’t read complementary articles or critical articles.  I don’t play that stick and carrot game. But I try to stay informed. I am not totally uninformed.  You can pull things off the net. You can get away from all this dribble and get to the hard news. But I somehow get the news.

Peter W. Schramm: Next question. With the education system in the shape that it is in today could you tell who or what encouraged you in your youth?

Justice Thomas: Fear of my grandfather, in part. Well, he was clear. We have gotten away from that, but he was absolutely clear: “You will go to school, and there will be no comment about it.”

My eighth grade teacher, I would have to say, Sister Mary Vergilius, who then was Mother Mary Vergilius, who was not one of these people who would placate you and worry about your self esteem. You had to do it so you did it. You understand that.

The list is too long but I would have to thank the librarians at the segregated library at Carnegie, the positive environment that I grew up in.  What we’re doing is we are inundating kids with negatives.  Everything is negative.  You can’t do this, you can’t do that. Then we allow the neighborhoods in which they live to be in chaos.  I grew up in a neighborhood that wasn’t considered a great neighborhood, but it was peaceful. It was conducive to survival.  And the people were just good outstanding people.  We weren’t assaulted when we walked to school.  We weren’t in fear for our lives.  We could walk to the library. It was poor and lots of people grew up like that.  For the life of me, I don’t understand why those of us who say we are so passionate about little kids can’t see that they can’t grow up in these environments.

And years ago I gave speeches about the out of wedlock birth rates and I was criticized as if I was the one responsible for it.  The only point I was trying to make was that those of us that didn’t have a father around understood how difficult that was even when you had someone else.  Imagine if you had no one else.  From an education stand point I tend to be as I said earlier today about legal education, I tend to be meat and potatoes.  I thank god that I had grandparents who ignored the dribble and swore they would do right by us.  The most compassionate two people I have met are the people that raised us with discipline because they understood if they did not we would parish.  That is compassion.  Give someone the wear with all to survive in a difficult world.  That is compassion.

Peter W. Schramm: What pressures where placed on you as a black man running for a major office? How did you deal with it? And what advice could you give to others?  Do you believe America has reached a promise of equality for all and if not in what areas are we still deficient and how do we fix them?

Justice Thomas: I don’t think we deceive ourselves about the reality of the second question.  There is inherent equality.  We know that.  As far as people having the opportunity to fully flourish in our society, we know that we have not reached that, and that is what is so troublesome because it seems as though we are kidding ourselves about how to do it.

In regard to the first question I have never run for office, but there are some harder pressures being the stereotypes  the assumptions that are made about you simply because of your race–that you must have a certain set of views.  Have you ever seen an article concerning the mayor of Washington not being black enough?  I have never seen an article about someone not being white enough or an article about someone that is not women enough.  It makes no sense, but those things can be said.   They are easy attacks. They are frivolous but easy attacks to be made.  So those assumptions that are there and people are real snide and cynical about them.  And they know its better than you and people love to tell you what to do. I wanted to go get them a couple of overseers and about 2000 acres.

Peter W. Schramm: Which opinions that you have written on this court have you struggled most with resolving and writing and why?

Justice Thomas: That is a lot.  That is difficult so let me categorize them so as not to mention specific opinions.  There are those that are analytically difficult.  Everybody has those. I don’t care what line of work you’re in.  We get worn out by them.  It is as if we do not invest enough of us in it.  There are a class of opinions that inside you something says I really need to do something.  I really would want to do something. This just is not right.  But you have no authority to do anything. That is when discipline is required.  As I tell kids when they come to see me: it is like watching someone drowning 20 feet below you on a bridge and you only have 10 feet of rope and all you can do is watch them perish because you do not have the capacity to save them.  That class of cases is the hardest and I am willing to bet any judge in this room would say something close to that.  That when you have no authority, no capacity, and no ability to help someone that needs help to right a wrong that in your heart you know is a wrong that you have no authority to do anything about.  Well, it is that class of case that really keeps you up at night and makes you agonize.

Peter W. Schramm:  A couple more?

Justice Clarence Thomas:  Oh, yes.  I’m not going anyplace.

Peter W. Schramm:  What position did you use to play, by the way?  Didn’t you play football?

Justice Clarence Thomas:  No, my grandfather wouldn’t let us play football.  I played lots of intramural football.  Let me rephrase that.  I had a chance to play college football because I was a good athlete, but I was angry during the sixties and saw it as an exploitation of the black man.  So I have this regret today that I did not try to play something that I dearly loved simply because I was too angry and tied up in knots.

Peter W. Schramm:  Another question.  Justice Thomas could you comment on the reasoning of Griswald, and tell us what you believe it could lead to in terms of the expansion of privacy rights?

Justice Clarence Thomas: Griswald has been around for a long time.  I will comment on it only to this extent.  Of course you know that there the rights were supposedly enumerated from these penumbras.  So when I got to the court, a friend of mine who will remain nameless sent me a custom made sign that’s on display in my office that says, “Please do not emanate into the penumbra.”  And I’ve tried to steadfastly avoid doing that.  I don’t know where this will lead to.  I think that the scholars have reached different conclusions, but we do know that that was one of the precursor decisions for Roe v. Wade.  Of course, we’ve changed that reasoning a bit in Casey.  We’re already beginning to get, and I’m just talking about a class of cases–I’m going to move a bit away from privacy for a minute–we’re already beginning to get the reliance and the right to die cases, on some of those cases, certainly on Casey, the language in Casey.  So I think you can begin to see that the big cases, and I’ve said this to others, you’re going to begin to see some cases talk about who gets to live, who gets to die, who gets to be born and all sorts of things like that.  And that’s going to be hard, and I think they’re going to rely on some of these precursor cases and how we come out, I don’t know.

Peter W. Schramm:  Next question.  Justice Thomas, what are the prospects for eliminating quotas?

Justice Clarence Thomas:  Oh, those are policy decisions.  I really don’t know.  The Court’s pretty much taken–we had Adarand, we had Crosen–the courts simply address those decisions and  I think spoke quite clearly.  Of course, I wrote separately in Adarand.  Very clear about racial classifications.  A lot of these are policy decisions.  Some of the individuals in legislative and executive branches have to make consistent with that.  I can’t tell you what’s going to happen with quotas.  I’m not in that position.  I can tell you that the court has found that there are problems with the Fourteenth Amendment, the equal protection clause, with some of these cases.  And the cases are clear and for the life of me, I don’t understand why people have a problem with understanding.

Peter W. Schramm:  Thank you.  Could you please tell us who is going to win the Daytona 500?

Justice Clarence Thomas:  Well I am very fortunate to be the Grand Marshal of the great Daytona 500, and I am not taking a position!  I will tell you though that my nephew’s name is Mark Martin.  For those of you who follow Nascar, he drives the number six Valvoline car.  The funny thing about him though, this seven year is a funny kid.  He met Jeff Gor-Don, as he calls him.  He drives a twenty-four Dupont car.   He met Jeff Gor-Don.  So he loves Jeff Gor-Don, because he shook his hand, even though Mark Martin is his namesake.  But I wouldn’t take a position on that.  I just look forward to having some fun there and being there with 200,000 other people watching these cars hurl around the track at 200 miles per hour.  There’s something that takes guts.  I’ve got a Corvette CR1, and I get up to 65 and I think I’m humming.  That’s pit speed for these guys.

Peter W. Schramm:  A Corvette, is that kind of like a Chevrolet kind of car?

Justice Clarence Thomas:  No comment!  If somebody needs to ask there is no need to answer!

Peter W. Schramm:  Not bad!  Justice Thomas, the Supreme Court has seemed to condone selective prosecution in certain victimless crimes.  Do you have any comments on selective prosecution?

Justice Clarence Thomas:  I don’t know what that means.  We’ve had selective prosecution cases, but that’s really a tough load to carry.  I don’t know about the topic.  It’s hard to answer that question in a vacuum.  I don’t think we condone selective prosecution because I think it’s clear that selective prosecution is something that can amount to prosecutorial abuse.  I just don’t know what they’re talking about.

Peter W. Schramm:  Has the pendulum swung too far to the right in regards to stop and search laws?

Justice Clarence Thomas:  The Constitution talks about unreasonable search and seizure.  I don’t know what it means to have swung too far.  I mean, are we too loose, too aggressive?  I think the court has tried to balance the two.  But you do have a right not to be subjected to unreasonable searches and seizures.  I don’t care if a police officer has good purposes, you still have constitutional protection.  I do believe that we have an obligation to make sure that’s enforced.  I don’t care who’s involved.  And I’ve taken a pretty strict line on these cases.  But if it’s too far in the wrong direction, that is if there is too much protection, then what I say to people is,  “You wait until you’re stopped.”  Those protections come in quite handy, but you’ve got to have probable cause for these searches that aren’t warranted.  I think that’s appropriate.  I think the court has tried to reach a good balance in those cases.

Peter W. Schramm:  Question:  Does the U.S. Constitution allow the Senate to convict but not remove an impeached President?

Justice Clarence Thomas:  Nice try.

Peter W. Schramm:  You don’t need my help on these.  How do you handle a situation when a law does not coincide with your faith?

Justice Clarence Thomas:  I think that should I ever reach that conflict, it’s so much that conflict that I worry about, but I worry about whether or not as a matter of faith I cannot faithfully discharge the oath.  I have an oath that I have taken to almighty God to impartially interpret these laws, to discharge these responsibilities.  But if my faith says I can’t do that then I think I have no choice but to seek other employment.  I’d rather do that than to compromise the oath or my faith.

Peter W. Schramm:  Who, in your opinion, is the leading candidate to rectify the current status of the Presidency of the United States?

Justice Clarence Thomas:  Yeah, you have to remember, I have had a lot of training of wording these questions.  I’ve had a lot of days in front of the Senate Judiciary Committee.

Peter W. Schramm:  What is the most difficult part of your job and which is your most favorite.

Justice Clarence Thomas:  You know, I’ll tell you, my favorite part of my job, you saw part of it today with the students. I love talking to the youth, from it doesn’t matter what walk of life, what color, age: at least so they can talk I think.  It really is inspiring.  We were talking about the Virginia home for Boys where I spoke before Christmas.  And it’s hard, but boy those kids, they’re eyes, they need hope.  How would you like to live without hope?  If you see some of the burdens some of these kids are carrying, you’d really want to help.

At work, the youth in my office would be my law clerks.  I think that one of the wonderful parts of the job.  I give them a hard time, they do a lot of work and I’m sure some of them are there now.  Boy, what a good group of kids.  I wouldn’t have it any other way than to have those kids around.  Just wonderful.

The hardest part of the job, I’d say, is the loss of anonymity.  You literally can’t do anything.  My wife and I were on the streets in London, we figured we were safe.  “Hey Justice Thomas!  Let’s take a picture.”  We were recognized two or three times there I think.  Then I was in the hardware store one morning, one Saturday morning–you know on Saturday morning you really don’t make much of an effort–you try to give yourself an A if you’re up and out of there.  And I was in that condition and I was looking for a couple of things to fix a sink or a toilet or something. I like to putter around.  A lot of times things wind up worse than when I started, but that doesn’t stop me from puttering.  And there’s this gentleman behind me, he looks at me and looks at me, and he says, “Are you that there judge?”  And then he totally got confused and left after I told him I was “that there judge” and then I was a little disconcerted because I can’t even go look for my washers without being asked.  Generally people are very, very nice about it.  But, loss of anonymity is a security problem and it is a disconcerting problem because you always feel like you’re on guard.  Like say you’re in traffic and someone cuts you off in your Honda motorcycle, I would say Harley, but you don’t have a Harley.  But if somebody cut you off you could at least yell at them.  Me, I just have to suffer in silence.  But seriously loss of anonymity is a real problem.

Peter W. Schramm:  If you don’t mind we will do just two more.  How do you reconcile the defense of marriage act signed by President Clinton in the full faith and credit clause in the light of Hawaii’s state of jurisprudence regarding same sex marriages?

Justice Clarence Thomas:  Boy, I am sure that case will get here pretty soon.  You certainly would expect that to end up on our platter so I could definitely not talk about that.

Peter W. Schramm:  Last question.  Could you comment on the constitutionality of relic New Deal legislation like the National Labor Relations Act?  Is it time to give the green light to states not having to conform to this law?

Justice Clarence Thomas:  Oh boy, what did you think of that act?  I don’t see any cases challenging the constitutionality of the NLRA since I have been on the court.  In fact you see very little challenge to any of the New Deal legislation.  That may be bad or I don’t know, but that is just reality.  What we get is an interpretation of the authority under the statute and we certainly can not reach out and decide things that are not before us.  I can say this, as I said before, whether it is New Deal legislation or Defense of Marriage Act or any of those, the one thing I would like you to be a bit hopeful about, and I have said this to other groups and perhaps it sounds corny in this day and age, but now everything sounds corny.  People have trouble believing much of what we took for granted, but be that as it may, I wish I could take you back with me when we go to conference next week.  I wish there was a way I could take you and put you in our conference room with us.  Whether you agree or disagree, I wish you could be there and see that nine people without assistants or aides.  That nine people, Article Three judges, are deciding these cases.  I am sure that if you were to go to these courts of appeals you would see that there are three deciding these cases and it isn’t that easy, but I think that when you walked away you would be able to say that even though I vehemently disagreed, I do at least have the security of knowing that these people take this oath seriously and that they are trying to make the proper decisions.  Now I am a dissenter, but I sit next to people I truly believe are trying to live up to their oath the way I am trying to live up to mine.  I think that if you say that maybe you would not agree or be upset but you would at least be secure in the knowledge that this branch of government operates the way you expect it to–in the seriousness with which it conducts its affairs.  I guess why I am so adamant about that we the thing that let me down.  I was telling Dr. Schramm earlier today I thought I was let down during my own ordeals by the institution that should have known better that should have stood between me and the mob.  I think that I can safely say to you that this institution does stand–right or wrong it does stand–and we have to have some faith in our institutions.  And you can put pressure on those of us that are in those institutions, hold us up, hold us accountable, but we have got to have these institutions or we are back to a state of nature.  Thank you all for having me.