Supreme Visit

By Lindy McCollum-Brounley

The early February visit of Associate Justice of the Supreme Court of the United States Clarence Thomas was an enlightening experience for the students, faculty and staff of the University of Florida Levin College of Law.

For many of us, our only base of knowledge of Justice Thomas before his visit was that he is, arguably, one of the more conservative justices on the Supreme Court. He is known for saying little during arguments and for speaking volumes in his written opinions. He eschews the Washington social scene, and he is a very private man.

Justice Thomas’ visit to UF Law as the Marshall M. Criser Distinguished Lecturer revealed an intellectual, engaging, and curious person. During the two days of his visit, Justice Thomas good-naturedly shook hundreds of hands and posed for hundreds of pictures with members of the Federal Bar Associati on, law students, faculty, staff, and even caterers and foodservers. His interest in each and every person he met was genuine and warm, regardless of how many people he’d already met or how long his day had been. When asked tough questions, he answered thoughtfully, candidly and oft en humorously, and he sought to find common ground with his audiences that transcended politi cal affiliations or perspectives.

We at UF Law were privileged to meet Justice Thomas and to learn, in a very personal way, that he is a man of great integrity, deep conviction, and of generous spirit. What a gift that understanding is, especially for those of us, this writer included, who may have otherwise only viewed Justice Thomas and his work on the Supreme Court of the United States through the singular lens of personal political convictions.

What follows are excerpts of Justice Thomas’ responses to questi ons posed by four UF Law students before of a primarily law-student audience of more than 300 during the Feb. 4, second annual Marshall M. Criser Distinguished Lecture Series, generously established in 2007 by Lewis Schott (JD 46) in honor of his friend and fellow UF Law alumnus, Marshall M. Criser (JD 49). A video of the lecture is available for viewing online at www.law.ufl .edu/uflaw.

Let me begin by speaking on the court. I have been there for some time, and last night [during the Feb.3 Federal Bar Association Reception] I was somewhat interested in one of the questions … there were quite a few questions from some of the lawyers here in the Federal Bar Association. One question had to do with whether or not the public’s view of the court is undermined by some of the things that are written about our opinions, on the reactions to the opinions, many of which, I think, border on being irresponsible.

The idea of assigning ulterior motives to the opinions of the court that people don’t agree with — rather than saying, simply, ‘the court doesn’t agree with my argument’ — I think we do run the risk in our society of undermining institutions that we will need to preserve our liberties.

You are in law school now, and one of the things you learn in law school is that things aren’t always as they appear, that there are factual differences that you may have overlooked, there are legal arguments on both sides, or maybe three sides. There are different approaches because we start with different assumptions or we look at things differently, from different perspectives. That is the wonderful idea behind having a multi-judge appellate court. I think law schools should encourage the idea that these differences are acceptable in our legal system, and in the end it is what strengthens and informs our legal system. It is how we change. It is the reason why Plessy eventually ends with Brown, because the system has to, over time, absorb it, understand it and see when it is wrong.

One of the things I love about my colleagues, we can disagree. I’ve sat for decades in conferences between justices Souter and Ginsberg. Now, we do not normally agree on cases, but they are my friends. I respect them.

Let’s just start with our default should always be, the institutions must be respected and preserved.
Criticize within bounds, but don’t undermine. You’re going to need them one day, and you will not be able to preserve the liberties that you enjoy now if you don’t have these institutions. So, you change
them. You make them grow. You strengthen them, but you don’t undermine them.

Jon Philipson (3L) asked about the significance of a bust in Thomas’ chambers of his grandfather with the quote, “Old man can’t is dead. I helped bury him.”

That informed my entire life — that it’s worth the effort, it’s worth being here. My grandfather, I can hear him now, he’s haunting me. I refer to him as ‘that brooding omnipresence.’ During law school, he was always there, ‘You can’t quit.’

In response to Leah Edelman’ (2L) question regarding the court keeping pace with changes in technology.

It’s changed the way we work — I mean, I have my Blackberry (to laughter) … But it’s also changed some of the issues. It’s changed a lot of the intellectual property issues, it’s changed the issues involving search and seizure, it’s going to change some privacy issues, it’s going to change the regulatory structures.

It used to be that telecommunications involved telephones. TV was separate. Look how those worlds now have merged. It’s absolutely fascinating. So, as they merge, the issues that come before us get, not only more complicated, they also get almost unpredictable. I think you all are in for some interesting things because there used to be these zones of privacy, these zones when private information caught up much more slowly with public information. Now look how they’re merged. You put something on your Facebook and it’s there on somebody’s hard drive forever. What are the implications of that?

We also see it with respect to how the government can obtain information in the criminal justice context. The issue is they don’t actually have to come onto your property now to look into your private affairs. They can seize it online. The wiretapping cases used to be interesting in the Fourth Amendment area, just think what’s going to happen in the future when we’re talking about the Internet providers cooperating with the government, or being able to tap into your over the air or wireless transmissions. All those things are changing and they’re changing very rapidly.

So it’s exciting, but also, it makes you a little bit apprehensive. I think you all are in for the Brave New World of technology in a way that we, of course, couldn’t have anticipated.

Joshua Mize (3L) asked, “What role do you think our Declaration of Independence should have in our civil society and what is its impact on the law?”
My view of the Declaration is that it informs the Constitution. This is the only country, I think — or one of the few — that starts with the notion that we are inherently equal and can only be governed by our consent. As a result of that, the government has to be limited, so you have separation of powers and some of the other enumerated powers that prevent the government from becoming our ruler. I don’t know if that’s happened already, but the whole notion is that there is a reason that we have the structure of the Constitution that we have. So you will see from time to time, that I would write extensively on the commerce clause and one of the reasons for that is simply that we have to contain the powers of government if we are to preserve our liberties. It’s a wonderful document. I think what bothers me sometimes is we get cynical about it. How can you really believe in something that you’re cynical about? … Many of you are passionate about your Florida Gators, but how passionate are we about the principles that underlie our country? That’s where the real action is, and it’s in this document. Is it perfect? No. What human institution is perfect? The Gators aren’t perfect or they would have won the National Championship, but you are still passionate about it. It’s perfectable in your lifetime, so you assume it’s worth saving. It’s worth perfecting.

If this Constitution, this form of government, had not worked, then I certainly would not be here. I think it’s fascinating, this is my circuit, the 11th Circuit, and it’s fascinating that in my lifetime, I could not go to college in my circuit, or law school in my circuit, and now, I’m a circuit justice. The people who perfected and applied this wonderful document are the reasons why I’m here. But if you didn’t have as a starting point, the Declaration of Independence — just as Dr. Martin Luther King said, it was the promissory note to which we all were heirs — and if we didn’t have that informing the Constitution, there’s no way I could be here. Is it perfect? No. Has everything been equalized? No. But what we should ask ourselves is, have we used this document to solve these problems, or are we content with whining and complaining?
Are we content with throwing stones or using the stones to build something? I think this document gives us the cement, gives us the building blocks to do that.

Dwayne Robinson (2L) noted that Thomas’ opinions are thought to be contextualist interpretations of the Constitution, interpreting the Constitution as it was written. Robinson asked how different Thomas thought our society would be today if the court had consistently taken contextualism as the majority point of view.

Well, that’s a good question, Dwayne. I think that segregation would never have occurred. I think the approach I would have taken, and one that I try to take, is the one of the first Justice Harlan. … He was the lone dissent in Plessy v. Ferguson, and if you look at what he said, ‘Look, here are my prejudices. Here are my biases,’ and he said in the opinion — you don’t have to agree with it, I don’t particularly agree with him — but he said in his view the white race would be superior for all time. But, then he goes on to say, ‘But, this document, this Constitution, knows no caste and knows no color.’

When you try to apply this broad, all encompassing Constitution, you try to go back and look at the intent of the people who drafted it, and the words they used and try to understand it. That is an awesome undertaking sometimes. It’s enormously difficult, but what I try to do, Dwayne, is to separate my own
views, just as Justice Harlan did, from what the framers said. … I’m not into worshipping methodologies, textualism, originalism, call it whatever you want. My approach is simply to find a way to be true to the intent of the drafters of our Constitution.

Jon Philipson asked about a story in Thomas’ book, My Grandfather’s Son, where he relates the experience of finding a wallet stuffed with hundreds of dollars, more than his monthly pay, during a time in his life of extreme hardship.
What occurs to you is, ‘It’s not mine. It’s not mine.’ That informs the way I do my work. … It’s the same attitude that I had toward that wallet that I have toward your Constitution and your laws. ‘It’s not mine.’ It’s our Constitution and we [the justices of the Supreme Court] have been given a special trust to interpret and to guard and to safeguard your Constitution and your laws. It’s not mine to play around with, to insert my opinions, to override what’s already there. It’s like Harlan; I can have my opinions, but they are not to displace your Constitution and your laws. So yes, we can talk about the wrongs in the legal profession. It has problems. But we can also talk about its perfectability by you all. You’re going to have your turn. You’re going to have your issues when you get out, we all do. When I went to law school, they told us, ‘You are going to be the future leaders,’ and I went, ‘Yeah, right! I’m from Savannah, Ga., what am I going to lead?’ But less than two decades later, you’re there and you look around when you show up on that court and you say, ‘Here we are.’

Lincoln had this wonderful, wonderful quote, at least it was attributed to Lincoln — that’s good enough for me because I like Lincoln and I like the quote (to laughter) — and the quote was, “I will prepare myself and when the time comes, I will be ready.” And your turn is coming. So you can spend your time worrying about what’s wrong, or you can get ready to correct it when you have your turn, when you’re the governor, when you’re the legislator, when you’re the president. … Your turn is coming, so use your time to focus on the wrongs and prepare to make them right when it’s your turn.