What Can We Learn from Justice Thomas's Tocqueville Lecture at Notre Dame?

Josh Blackman has helpfully transcribed Justic Clarence Thomas’s recent Tocqueville Lecture at Notre Dame Law School and posted it on the Volokh Conspiracy. Most of the media attention has focused on Justice Thomas’s defense of SCOTUS’s independence and warning against jeopardizing “faith in the legal institutions,” but Josh points out that the entire talk has many more worthwhile observations, which he calls “gems.” Josh includes one full passage in the body of his post, but I don’t think it is as admirable as either he or the Justice think it is.

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. (Boldface per Blackman.)

The first problem, of course, is that Justice Thomas does not tell us anything about the cases he cried over. Exactly which decisions did he join that were contrary to his policy preferences, and how often did that happen? Without any specifics, it is impossible to evaluate the frequent claim that originalist methods lead to determinable results independent of the judge’s personal values. Josh is evidently willing to take Justice Thomas’s word for it, but I would like more information.

Less obvious are the greater implications of Justice Thomas’s anecdote about his clerks. Justice Thomas informs us that he tells his clerks they must leave their positions with “clean hands, clean hearts and clear conscience.” To that end, he encourages them to watch him, making sure he does his job “as a judge, not as a citizen.” They need to tell him if they “see something” so that they can sit and “talk about it.” Again, we don’t know if any clerk has ever raised a conscientious objection of an opinion, much less questioned his clean hands. And if this has happened, we don’t know the outcome: Did Justice Thomas convince the clerk of his position, or did the clerk persuade Justice Thomas to change his mind?

We do know that all 120 clerks would stand up for Justice Thomas today. “But in 30 years or 30 terms, we I don't think a single Clerk will ever tell you we have [done] anything other than our job,” Justice Thomas assures us. Well, of course not. Like all other SCOTUS clerks, Thomas’s are hand-chosen. They are dependent on him for references, and they will benefit from their association with him for the rest of their careers. Who would expect any of them to report that the justice had been allowing his preferences to interfere with his job?

Approval from his clerks is certainly evidence of their loyalty to Justice Thomas, but it tells us nothing about the rectitude of his decision-making. (To be clear, I do not question Justice Thomas’s rectitude or sincerity, but his Tocqueville lecture provides scant evidence of deep reflection.)

Josh ends his post with the observation “well said.” I have a similar reaction, but only because Justice Thomas revealed more about his self-awareness, or perhaps lack of it, than he intended.

Comments

[Anonymous Bosch]

Why would he go into details in that sort of forum? Why MUST he do so? YOU want to "evaluate the frequent claim that originalist methods lead to determinable results independent of the judge’s personal values". Why does Thomas owe anyone sufficient data to that effect within, and in the context of, a singular guest lecture?

You've fallaciously moved from the absence of details (which you'd like to have learned) to a requirement to present such details to "making a case", and then on to an invalid inference that this exhibits a lack of self-awareness.

No one could take seriously that this post constitutes a legitimate critique of Thomas, let alone lend even a scintilla of credence to the notion that this exhibits a lack of genuine self-awareness.

Be a professional, Steve.

[Howard Wasserman]

Scalia could point to one decision--Texas v. Johnson (or two, if you include Eichman). It came in his third year on the Court (Eichman his fourth). He feasted off that as his lone "see, originalism doesn't always line up with my political preferences" example for 27 more years.

[Howard Wasserman]

Thomas need not go into details. But if people are going to praise his talk as something meaningful and more than platitudes, it is fair to reject that praise for its absence of details.

Thomas (and Scalia before him and Gorsuch after him) insist that they are better, more legitimate judges because they adhere to a methodology that is agnostic to their political preferences. A judge taking that position must prove that this methodology is agnostic to political preferences. If Thomas cannot cite an example (or, per my prior comment, Scalia could point to one in 30 years), that is a tell. Maybe not a conclusion, but evidence.

[Steve L.]

Thanks, Howard. Justice Thomas can answer questions however he wishes, but it is fair to note when the answers are evasive or incomplete -- especially when someone as usually perceptive as Josh Blackman praises an answer as "well said."

[Anonymous Bosch]

"But if people are going to praise his talk as something meaningful and more than platitudes, it is fair to reject that praise for its absence of details."

No, it isn't. On that contrary, that merely begs the question about what can count as the conveyance of something meaningful. As just one example, your stance groundlessly excludes conveying something meaningful stated in the form of astute general observations that have hitherto gone unobserved.

"Thomas (and Scalia before him and Gorsuch after him) insist that they are better, more legitimate judges because they adhere to a methodology that is agnostic to their political preferences. A judge taking that position must prove that this methodology is agnostic to political preferences. If Thomas cannot cite an example (or, per my prior comment, Scalia could point to one in 30 years), that is a tell. Maybe not a conclusion, but evidence."

Since you've already conceded that Thomas needn't have done so in this particular talk, you are reaching beyond the bounds of Lubet's post. Still, two things. First, you say "cannot" ("cannot cite an example..."). If Thomas simply will not provide more, you nevertheless cannot infer that he cannot provide examples. If he indeed could not, then perhaps that would be a tell. But his not talking about it, or refusing to talk about it, does not constitute evidence that he himself believes it cannot be done. One's treating it as such anyway would be an invalid inference (sub silentio fallacy).

Second, it's unclear what would even constitute "adequate" evidence or proof here from Thomas himself. Consider. Imagine that in furtherance of the position you wish to see defended, Thomas IDed 43 opinions that he authored and claimed that those cases' results diverge from his personal political preferences. What would constitute "credible" evidence for that divergence actually being the case, other than his mere self-reporting (on his end, in terms of - putative - onus fulfillment)? It beggars belief that (a) any such self-reporting would, ALONE, constitute adequate evidence or (b) that American Blue Team cheerleaders would, for even one moment, treat his self-reporting as being adequate anyway.

As OW Holmes Jr. famously said, "hak mir nisht keyn tshaynik".