'Grandfather's son' speaks off the bench

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“The past is never dead. It’s not even past.” (William Faulkner, “Requiem for a Nun,” Act I, Scene III).

Past, present, and future converge when dealing with U.S. Supreme Court Justice Clarence H. Thomas, whether reading an iconoclastic lone dissent (or concurrence), reading his memoirs, or hearing him speak. Last week, Thomas spoke in Chicago as part of a book tour promoting “My Grandfather’s Son,” released Oct. 1.

The past is very much alive in Thomas’ present. It is apparent when he cites Gibbons v. Ogden, 22 U.S. 1 (1824), as a correct interpretation of the Commerce Clause, instead of Wickard v. Fillburn, 317 U.S. 111 (1942)(feeding one’s own crops to one’s own animals is “interstate commerce”).

It crops up again in Kelo v. New London, 545 U.S. 469 (2005), when he called “urban renewal” a euphemism for “Negro removal,” in declaiming the forced transfer of property from one private property owner to another.

And in cases directly involving race, centuries of slavery, discrimination, and prejudice are very much alive in Thomas’ opinions.

And yet, these dissents and concurrences aren’t really written for the present, as much as they are for the future. No other justice joins his most eloquent and forceful opinions.

Wickard will not be overruled any time soon, even if it may be distinguished every once in a while.

Ultimately, those opinions are not written for us, but for future generations of judges, lawyers, and students.

So, it was appropriate that, among the 960 in attendance at Thomas’ speech in Chicago were hundreds of young high school students. Those high school students who someday attend law school will read those opinions in Constitutional Law, before any of the attorneys at the event will cite them in their briefs as precedent.

Thomas said at the event that it is his goal “to reunite the people with their Constitution.”

It is a long-term goal — one that restores long-abandoned limitations on congressional power, and attains the never-yet realized “colorblind society.”

Before answering questions from the audience, Thomas gave a short explanation of why he decided to write his memoirs.

Thomas explained, “This book is for the children … to let them know there is a reason to get up every day, put one foot in front of the other, and keep going. There were so many times I wanted to say, ‘It’s not worth it.’”

Linking the past, present, and future, Thomas related that, “When I joined the seminary, my grandfather told me, ‘Boy, don’t shame me and don’t shame our race.’ I hope I have brought honor to them, and I hope he would see the book as a memorial to them.”

“Why would I open old wounds, and consume the present writing about the difficult past?”

Thomas asked. He answered that he felt it a duty to those who went before him; that he heard them crying out, “remember us; tell others the values we gave you.”

“I’ve done my honest best to remember them, and be honest about our struggles. It is my sincere hope that reading about my life, someone will find hope,” Thomas concluded before turning to the audience’s questions.

Thomas on topic

During the question and answer portion of Justice Thomas’ presentation, he shared his thoughts on a variety of topics. Some of those topics and excerpts from Thomas’ responses follow.

Originalism

“There are two ways to decide a case. You can try to determine what the Constitution says, and what the framers were trying to say; that’s originalism. Or you can make it up.”

Public Policy

“The Harlan dissent in Plessy v. Ferguson recognizes that we all have prejudices, but the Constitution has none. When we start weaving public policy into the document, we do so at great risk. We all have different interests, but that’s not law. We must make a firewall between our personal opinions and the law. … If we weave public policy into this document, it will cease to exist.”

Oral Arguments

“I ask all the questions that need to be asked. I would ask why my colleagues ask so many questions. Most of our work is done in writing. … Nine out of 10 cases could be decided on briefs alone; so why do we torment people? We should allow people to talk.”

International Law

“Citing international law to interpret the Constitution is cherry-picking. When people cite international law, they don’t look to the laws of China, North Korea, or Zimbabwe — only those countries whose laws support their positions. It becomes just a matter of personal opinion regarding public policy. I avoid cherry-picking to inform our own jurisprudence.”

To Children in Poverty

“The best thing you can do is not listen to the negative. When I was young, people would ask, ‘why you even try, the man ain’t going to let you do nothing?’ I’ve heard it all — 100 negatives to every one positive. But negative things are like cancer of the spirit; they make things worse. That’s hard, but it’s the only way.”

Motivation

“Every year, I take my clerks to Gettysburg, to see where Lincoln issued the Gettysburg Address; where Pickett’s Charge failed. I tell them that it is up to us to give our best, for all those who died for this ideal that we all believe in, but which wasn’t lived up to. That is my motivation. I am more idealistic today at 59 than at 29; that keeps me going every day.”

Advice to a 1L entering a “liberal profession”

“I feel bad for my law clerks … up to a point. Every year, I make them watch ‘The Fountainhead.’ I want them to see the notion of standing up against the whole world if you think you’re right. The fact that people are against you doesn’t mean you’re wrong.”
“There are people dying for liberty in war; police on the streets risk their lives for it. Is it that hard to sit in class and take guff?”

Liberalism

“I’ve never described myself as a liberal. I got caught up, as many did, in the late ’60s. I was angry over race. After Martin Luther King (Jr.) was assassinated, I reacted by being angry, but I was never a liberal, or part of a libertine crowd. I look at my life as a ‘prodigal circle’ back to Myers Anderson [his grandfather]. ‘My Grandfather’s Son’ is aptly titled; I am my grandfather’s son. I am what he would have been if he could have. I am conserving the legacy my grandfather gave me.”

The greatest disappointment that turned into a blessing

“My entire life — read the book, and add it up. It explains why I’m here. The first line of the book is, ‘I was 9 years old when I met my father.’ How’s that for a start?”

“Everything in my life has been miraculous: g
oing to live with my grandparents; the nuns at school; my grandfather being a real man; our house burning down resulting in moving to my grandparents; not being able to get a job in Atlanta, despite a Yale Law degree. My life is a series of doors closing, but leading me to where I am (I was still trying to get back to Georgia, when I was appointed to the D.C. Circuit). My life has worked out great.

This is a life of miracles.”