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tv   Supreme Court Justice Clarence Thomas Delivers Remarks at the Heritage...  CSPAN  November 24, 2016 9:05pm-10:21pm EST

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>>nedy discuss the opioid problem. this is a biological thing. your brain is in oregon. once doctors -- your brain is an organ. your collar bone, take these pills. for a lot of people, those pills damage that organ. now an interview with supreme court justice clarence thomas in october, marking the 25th anniversary of his appointment to the supreme court. from the heritage foundation, this is one hour and 10 minutes.
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>> thank you, everyone. here in ask everyone house, if you would be so kind, to check if your mobile devices have been silenced or turned off. it is always appreciated. we are so pleased you could join us this evening, and of course, the great gentlemen standing next to me, for whom our center for legal and judicial studies is named, the 75th attorney general of the united states. please welcome, ed meese. [applause] mr. meese: thank you. thank you, john, and thank you ladies and gentlemen. it's a pleasure for me to join john and welcome you to the heritage foundation to welcome me to the distinguished lecture. this is one of heritage's most prestigious events of the year, and we are happy to sponsor this
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evening, particularly because of the guest i will introduce in a moment. the joseph story lecture has traditionally been held in conjunction with two other important events of the center for legal and judicial studies. one is the legal strategy forum. in the audience tonight, we have nearly 50 ceos and chief legal officer's from the freedom based law firms of this nation. we are happy to have them with us on this occasion. the other event is a series that we started some years ago, called the preserve the constitution series. this is one of several of these types of events, in which various aspects of stitches in -- the constitution and the rule of law are discussed with various experts. this lecture really fits right into that pattern, where we discussed the importance of constitutional fidelity and the rule of law.
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of course, this lecture has been named in honor of one of our countries for most -- country's for most judicial and legal scholars. a man who distinguished himself in so many different ways. joseph story was involved in politics and civic activities in his native state of massachusetts. he was a scholar. he taught even while a justice of the supreme court at the harvard law school, and was a member of that faculty, starting what i suspect was a pattern that has been imitated by many justices since that time, including our guest this evening. he held various offices in his hometown, and that area, and also served in the house of representatives, representing his district in massachusetts. he was appointed to the united states supreme court by james madison in 1812, and served until 1845, when he passed away at the age of 65. but what makes them particularly
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noted as far as we are concerned was his commitment to the constitution of the united states, as it was written. he was a true defender of that document, our foremost trader -- charter, and believes being faithful to the text of the constitution and what it was understood to mean by those who wrote it and ratified it, as well as the amendments in subsequent years, was the only way in which a judge or justice could legitimately interpret that document as they would any other legal document. so, it was that commitment to the constitution that led him to write one of the foremost commentaries on the constitution of any author in the history of the country. it was his commentaries that are still used to understand the way in which it should be interpreted by the legal profession and by the judges, and of course, the members of the supreme court.
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it's appropriate, then, that the story lecture featured tonight our perfection that particular guest. clarence thomas is also a unique individual. for one thing, he served in all three branches of government. he worked in the senate office for senator jack danforth for missouri. he worked in the reagan administration in two capacities. he was chairman -- the first assistant secretary of education for civil rights, and then chairman of the equal employment opportunity commission. and then, he was appointed initially by george h.w. bush as a judge of the united states court of appeals for the district of columbia circuit. then, ultimately, as an associate justice of the united states supreme court in 1991. we mentioned, we were discussing this before we came in tonight, that last sunday was his 25th anniversary as a member of the
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court. [applause] i cannot introduce clarence without also mentioning his lovely wife, who is with us tonight. she herself has a distinguished career in the city, and in the country, both in civic activities and think tax, as well as in tv. we are pleased to have you with us also. [applause] when i say that it is very appropriate that clarence thomas be our joseph story lecture tonight, it is because of his lifelong and particularly judicial period of dedication to the constitution of the united states.
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he is in my mind, one of the clearest writers on the supreme court, and his clear writing has made it clear, if you will, that the constitution, as written, should be interpreted according to those, who as i mentioned, wrote it and ratified it. that is an important part of preserving the thoughts and ideas that ronald reagan had when he first appointed him to a position in the executive branch, and what president bush had in mind when he appointed him to two judicial positions. that is the fact that we need judges who will be faithful to the rule of law, and to the constitution itself, if we are going to preserve self-government and liberty for the people of this country.
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at no time in this history is this something to be defended as the present time. that is why we are so honored to have him. and randy barnett, who i see tonight, constitutional law professor at georgetown university, calls justice thomas a fearless originalist. he honors the constitution at -- as it was written. he elevates the original meaning of the text above preston. -- above precedent. in other words, he puts the founders above dead justices. [laughter] [applause] i might add, he puts them above alive justices as well. [laughter] [applause] i think the best test of anyone appointed to any court is how the person who appointed him feels about it. that is why a think we should all be interested to know that president bush, in talking about
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him, said this about him, and how proud he was for this election. he said, while justice thomas is known both for his consistently sober demeanor on the bench, and his thoughtful and respected jurisprudence, he is also widely admired for his want him on his colleague, law clerks, and the court stuff. he wound up by saying, he is a very good man, and that's why i'm so pleased to introduce to you tonight that good man, clarence thomas. [applause] joining him tonight in this discussion is the director of the center for legal and judicial studies, john malcolm, who has a distinguished career himself in the law and government, and now as the director of the center at the heritage foundation. i will turn it over to you. welcome john malcolm.
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[applause] mr. malcolm: inky. dr. thomas, it is a real pleasure to be on the stage with you. congratulation ons being on the court for 25 years. i would like to begin with some reflection. what surprised you the most about your time in the court? justice clarence: first of all -- can you all hear me? i'm a little hard of hearing myself. i would like to thank general meese for the introduction. i met him in december of 1980. i have known him for now over 35 years. that holds true also for his family. i remember when you were being criticized heavily, and that is an understatement. your demeanor, your pleasant demeanor, never changed. your positive attitude, your willingness to talk to young
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people and persuade them to your ideas, but not returning it with fire. that is as much to commend itself as to admire. thank you not only for the years together, but for your example. [applause] i would also like to thank heritage and all who were involved with this evening. of course, my wife and i made lots of trips here. when she was working here, i would love being around her. i don't spend a lot of time thinking back over the time.
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we are too busy doing our work. i'm not a navelgazing. we have enough navelgazers in society. over the last few years, we have had things that have happened in the court that changed the way that we work. we have to be focused on that. if i reflected back over the years, the thing i enjoy most are my law clerks. they make it fun, they make the energy. the first year was really tough. i don't know how we survived. and then i see those clerks today, and the affection you have for them is just tremendous. they were there at the beginning when we didn't have systems. we didn't have computers. through the years, i think i
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have to say, the consistency, the effort to have a consistent judicial philosophy, when you can't try to explain why you changed, like you owe that to people, try to make the work, understandable, to make it make sense. when it doesn't make sense, to try to point out why you think it doesn't make sense. something like the dormant commerce clause, it's sort of like a hibernating bear or something. [laughter] if you can't explain it, you
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should at least tell people why you can't. [laughter] if it doesn't make sense, my granddaddy used to say, boy, that don't make sense. [laughter] we try to make it accessible. one of the fun times, i think people in this city, they really enjoy themselves, i don't know. we were on one of our road trips with my law clerks. this gentleman comes up to me, and he's excited. we were at gettysburg. he runs up, and he's really perspiring. it's june. mr. malcom: a civil war reenactor? justice clarence: no, just a guy.
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he's running around. he has this fake parchment paper with an opinion on it here he said, i need you to sign this. he said, it is your federal maritime commission opinion. [laughter] justice clarence: i said, why are you here with that? he said, that's what this is all about. [laughter] he said, i want to thank you, because i can understand what you are saying. and he said, i read all your opinions because i can understand them. i think we are obligated to make the constitution and what we write about the constitution accessible to our fellow citizens. mr. malcom: that it empowers people by giving them a sense that the constitution is really there is, and ought to be accessible.
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justice clarence: it is theirs. i think that we hide it from them when we write in language that is inaccessible. if you think about it, i had a buddy of mine who was a wonderful, wonderful friend, who was quadriplegic. i remember before you had curved cuts, a curve that high -- curb that i was like the great wall of china. that kind of building was inaccessible to him. i think sometimes we make something that should be accessible -- today, of course, we have made the curbs flush with the street so it is accessible. we can kind of do that with language. one of the things i tell my law clerks is that genius is not putting a two dollar idea in a $20 sentence. it takes work, and organization and editing. but i think we owe it to people to presented under constitution in the way they can understand it, to enfranchise them.
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mr. malcom: you mentioned that you take your clerks to gettysburg. i was curious about that. why do you do that? what are some of the experiences and reactions you have gotten? justice clarence: they are polite. [laughter] actually, i was going to stop doing it. there was some resistance to this continuing. i really enjoy it. i read battle cry, to understand the 14th amendment in particular. in the civil war era, you have to understand the civil war first, and understand our history. that started when i was at eeoc, i wanted to understand the founding better. i hired some guys from claremont. i wasn't planning on being a judge, i just wanted to understand the founding. as a part of that, you read
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civil war history, you read the lincoln douglas debates, all sorts of things. i thought it would be important for my clerks to go, not just talk about the 14th amendment, not just talk about the equal protection clause, not just talks about substantive due process, but to go and feel it. to see the place, cya, what was this about, why did people die? to go where lincoln delivered the gettysburg address. to go where he implores them, the living, to make it worthwhile, this experiment. also, it is the end of the term. at the end of the term, you could be a little bit upset. [laughter] people can become -- kids can see how the sausage is made, and become a little bit cynical, a
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little bit jaded. i was thought it was a great idea to go and have them see that it wasn't about winning an argument. it wasn't about a subject for this little thing. it's about us and our country. and to encourage them to remain hopeful, despite what they have seen, to remain idealists, despite what they have seen, and what has happened. because in these jobs, a lot of negativity comes in, but that's a lesson i mentioned that i learned from general meese. somehow, you keep it together. you say, look, i know i'm experienced and i have seen the sausage made, but this ideal is all we have left. this wonderful ideal of the perfectibility of the great
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republic. that is basically the reason. plus, it's kind of fun. [laughter] mr. malcom: and you can contemplate about how our country would have gone in a completely different direction. justice clarence: right, if we had won that would have been a problem. [laughter] justice clarence: it would have been a bigger problem for me than for you. [laughter] mr. malcom: probably so! [laughter] mr. malcom: let's stick with reflections on the last ones. i have to mention your maritime opinion. i remember the first time i read an opinion of yours, it just captured me. city of chicago versus moralities, the court struck down an anti-lawyer -- anti-gang
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ordinance. you wrote this passionate dissent about the supported -- suppose it right to leader of the 2%, condemning 98% of the residents. it just hit me and has stuck with me. i'm curious, what opinions over the course of your career has stuck with you, the ones you are most proud of our profound? justice clarence: i don't know, i think there are different types of opinions. i don't really see them as trophies. i don't think about them that way. there are opinions that i think about, usually the ones that are really hard. the bettis opinion, i really agonize over, and agonize throughout the summer. she lost her car, the government
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took her car and her husband's car, that really bothered me a lot. the cases like the haitian refugees. cases where your heart goes one way, but you have to stick with the law. those are hard opinions. i think those are the ones you think a lot about. those are the ones where your hair begins to fall out. but the one you mentioned, morales, the thing that concerns me, i think sometimes we write these opinions or the court decides cases, and that case was about keeping gangs off the street so that poor, inner-city people could walk down the street. little kids could go to school. i lived in the inner-city. you imprison people if they are not capable of using, whether it is public transportation or
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public streets. i think sometimes, because we don't have a sense of the neighborhood, we don't point out that side of the equation. that was just a paragraph or so of the opinion, but i was just making that point at the end. i don't really go back and look at specific opinions. i look at opinions for example, if -- i taught a course on started decisive -- people talk about it a lot. you don't have time to read thousands of pages on that. the ones where i'm not sure, the one i agonize about and spend more time.
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john: will get to that later. you spent time agonizing over the opinion which you are trying to command a majority, or the ones you would say you are the loan to center. dennis loan dissenter. justice thomas: i don't have a problem writing majority opinions. you are an agent for the majority when you are writing for the majority. one of the things you learn in -- at the court overtime is that everybody knows everybody. if you are an honest rocher when you are writing majority you don't have a problem. i have never had a problem with that. any number of opinions started
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off fractured. that's not a problem. but you agonize over a technical opinion, you take something like whether or not you can patent the breast cancer gene. that is technical, so that is difficult. it is difficult and a different way from the haitian refugee case. you have to spend a lot of time on it. i don't agonize over it. the opinions might be complemented but you don't lose a lot of emotional energy over taxes. >> when you are trying to get some of your fellow justices to join your opinion. justice thomas: i don't spend much time on that. >> so that your view whether they join you are not. justice thomas: i write a little
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before -- more crisply because someone doesn't want to go as far. but you don't change the principal. you might compromise and not go as far to hold the court. you don't change your underlying view or principle. you never do that harried it doesn't mean that i don't make a mistake, but i don't believe in doing that. when you write separately, you try to be thoughtful. even as you go back and you take a look, when i written -- wrote separately in the mcdonald case. i still believe we should not ignore the privileges or immunities squad. we spent a lot of time explaining the history of the privilege or immunity clause and what is included. i am not saying we had it perfectly, but we did a lot of
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work on it. we did it -- a few years ago, we did three opinions in the administrative law area. that was squat all hall because you are trying to tell the applications of what we have been doing. it took a lot of extra work because i think you owe it to people that when you are breaking new ground you have to explain things more in depth. with respect to mcdonald's, we can talk about your opinion about the clauses you have been quite bold on that. one thing i know that is on the mind of everybody here is the impact of your passing of justice anthony scalia. could you perhaps share some
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fond reminiscence is of your time on and off the court? justice thomas: i did not know him before i got to the court. i had one law clerk, chris landau, he snuck me in his chambers and that was the most extensive time i had ever 10 at the court before i became a member. when i got to the court, justice scalia made it a point. he had a rep station of being a tough, unfairly treated as being aggressive in some ways. i never found that side. he was always warm. he was also enormously respectful, from the first days that i was there to the last days.
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our relationship -- i didn't go to the kennedy center to watch -- to see operas with him. i used to kid him about that. i like opera, i just don't want to be around the people who like opera. [laughter] he thought it was really funny and odd that i was from the south that would not go hunting. i thought it was on that he was from new york and new jersey. he would try to talk me into that and i told him there was no good from adding in the woods. [laughter] it was delightful. i would go in his office and most of the time it was just laughing.
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sometimes he would be a little down and i would boost him up a little bit. one of the funny things towards the end was -- he was pretty aggressive with that fourth amendment. we were on opposite sides again in a fourth amendment case. it was an anonymous tip about a drunk driver, i forget which one. it might have in the dna case, i can't remember. in his dissent he said, liberty destroying cocktail. i said that's a good line. at the end of the term would want to launch and it was the last lunch that we want to, a tradition we started early on. it was there and he is ordering and trying to figure out what kind of a cocktail do i have before lunch.
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i said i have a liberty destroying cocktail. he thought it was hilarious. one of my favorite is nina of course was a constitutional law expert. he must've thought i was a wrecking ball or something. we were sitting on the bench one day -- i don't know how to say this -- he leans over to me and he said clarence, auer is one of the worst opinions in the history of the country. you know.
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you wrote it. [laughter] he couldn't remember when he had done. after 30 years. but i trusted him and we trusted each other. even when we disagree, if i told him i didn't agree with him he trusted that i didn't agree with him. if he was on the other side he would call me up and he had a concern, i trusted him here --. we almost never talked about cases. it was very rare. slightly different reasons we would end up on the wrong side. he thought it was hilarious. how did you wind up in the same position?
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you come from a barely literate family, his father was a romance literate seat professor. he was from the north and i was from the south and we wound up the same way -- place. mr. malcolm: that was one of the points he made in his dissent in which he said if we are going to make policy decisions in the court then regional variation all that matters. if you are going about the task of being a judge, that regional variation shouldn't matter. justice thomas: he tried very hard in my opinion, to always be open to disagreements, concerns. he always cared about the big things, the rest of bowls, small things like syntax and
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punctuation. i would go by to see him and he had his rack up, looking his opinions and he's going through them. he did this small, he did the bigger the cared about at all. that teaches you a lesson that it all matters. after he passed away, it was horrible in every way. i normally left the bench right after him. his chambers were next to mine so i always walked a few steps behind him as i left later. i would catch up to him and we would talk a bit, just yukking it up. the first and he was gone i caught myself coming off the bench and taking a quick step to try to catch them. that was the example of someone
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who is missing. he is not there. there is nobody to catch up to. he was, for me, a fun guy. it was not about cases. sometimes -- if one of his clerk said he was down a little bit i would go in and hopefully afterwards he would deal a little better. mr. malcolm: in light of the current vacancy, one of these days we will have another confirmation hearing. there are a lot of people who believed that the process is broken. your confirmation being one example of that. your thoughts on whether there is any hope to improve the confirmation process. justice thomas: there is always hope. the city is rogan in some ways.
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-- broken in some ways. i have been here most of my life. i think we have become very comfortable with not thinking through and debating things. i think that we have decided that rather than confront the disagreements and differences of the union, we will annihilate the person who disagrees with me. i don't think that's going to work in a republic or in a civil society. at some point we have to recognize that we are destroying our institutions. we are going to destroy them, the day is going to come, if it is not already here when we need
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the integrity of the institution. even when you disagree with people, if you notice in my opinions, i don't attack personally my colleagues. i disagree with them strongly because it's important for me to leave them standing and leave the institution standing. i don't that will change in this city until we get back to that we debate and argue and decide things on facts and reason as opposed to -- who has the best narrative or some other nonsense. >> let me build on that. a lot of people in this country who believe that the presidency and congress is irretrievably broken.
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they have lost confidence in the institutions. there are people that have lost confidence in the court and in your court. what do you say to people who believe that? justice thomas: what have we done to gain their confidence? i don't think people all of us confidence. it is something that we earn and that you try to do your job in a way that they can have confidence in what you do. you try to do the hard things, but they shouldn't be doing in a way that they can have confidence in, that you can trust.
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perhaps we should ask ourselves why -- what we have done to not earn it or to earn a. i am a so sure we have all the answers to that. one of the things i tell my clerks is simply try to live up to the goals that you took. you took an old- oath to live up to the constitution. you live up to it. in this city that doesn't go for much. you take heat for it. that part of the job, you supposed to take heat for it. hopefully, someone will run up to you one a with a federal maritime commission and have a lot of confidence, this is what this is all about. that doesn't sound like a whole lot. most people don't even care about it. but it does mean something to you when an average citizen has confidence that you did your job fairly and you did it right as the shoe could.
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-- as best you could. he said he could understand it and he accepted it because of that. certainly you and justice scalia and some of your colleagues when the court has issued a little opinion will call them out for that. do you think that hugh hope your colleagues over time will be persuaded? justice thomas: i think that if you are going to do something in process, you run the risk of broad policy decisions. you tend to stray far afield from the law. what justice scalia was saying you have to have room, it has to do some work. nobody is that interested in it, but that is heart of the reasons i dissented in the commercial speech cases. it is a four factor test but always takes you where you want to go.
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that's not much of a test. i think that the justice understood why it was a lemon test, that we have got to have something with more grip to it then that sort of the test. these leave rooms for you to come out where you want to. i don't know whether it's totally people are political in the sense of the politics of the city. but the jurisprudence allows for that criticism. we took criticism in bush v gore or something like that. i think what you try to do is your do your job, you have applied the law in a fair way. some years ago, a court that i really enjoyed being on was the one, with justice souter, o'connor, and stevens.
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we were together along time. one of the things that one of my colleagues with whom i rarely agreed said that the planets are consistent. whether it is based on or around free in basketball you want to call it the same way. call it the same way for both sides and you can live with it. justice thomas: he never said he agreed. mr. malcolm: i want to talk about certain provisions, sentences -- substantive decisions. you said the constitution is not a stand-alone document.
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that it can only be properly understood in combination with the declaration of independence. justice thomas: my point was that we have to understand -- this is what i was trying to answer in the mid-1980's. while this government, wasn't something else. government by consent, inalienable rights, what were we protecting was the structure in our constitution. i think when you look at the constitution, which is a positive document with a declaration as a back drop you understand why this republic, why is separation of powers so important? why is federalism so important. why a written constitution so
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important? because they are searching you give up some of your rights in order to be governed. not all of them. it is that limitation -- i read a lot of the justices separation of powers this summer. they all seem to come back to one name, protecting individual liberty. it wasn't just to have separation of powers. it wasn't just to have federalism. it wasn't just to have -- it was in order you have these to protect liberty. where does that start? it starts in the declaration. mr. malcolm: people talk about the bill of rights as if that is the cake as opposed to the 10 amendments to the document.
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that we the people were going to consent to be governed -- governed. those structural protections are what gave us liberty. justice thomas: i did not fully understand that until the 1980's with can and john. the amendments were a big deal in law school. we didn't even read the constitution. i think the structure is so important. perhaps that's where on the constitutional issues, perhaps were justice scalia saw eye to eye from the beginning, the critical importance of the structure. the other thing was that the text or this is a written constitution. this is not making it up going -- as you go along. it has to lock it down.
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it has to be a written document. written amendments which are really important. i think that the structure is the most important part. you see i write a lot on the commerce clause. you are in this rating the relationship with the national government can do. this is enumerated power. you go from regulated commerce to its economic effects on commerce or whatever. that's quite a different test from regulating commerce. i want to lead -- you talked about privileges or immunities.
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when you look at different clauses like protecting personal and economic liberties, which causes do you gravitate to? protection clause, privileges clause, what other privileges? justice thomas: it's all there, the bill of attainder's, the third amendment is there, we want to pretend it doesn't exist. the first amendment, you go back to the language. what does it mean? we are obligated to do that. people's theories -- judge brown gave a lecture about the theories. they can spin off in a different direction from the limitations built into the constitution itself.
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i think that is very important. mr. malcolm: you talked about enumerated powers for government, the structural infections, how immunity clauses have been toward even though it's right there. let's talk about your view of starry decisive/ you are more willing to revisit past resident. this is not unique in sometimes the court has revisited
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precedents and some way. how would you respond to your critics in this? justice thomas: i don't care. criticism i don't care about. that's what i taught for so long. i read everything i could get my hands on from stare decisis. goldberg theory was basically that it is a ratchet to improve civil liberties, the strict rules apply when you win those cases. but when they need to overrule cases in order to do what is the right thing then you get brandeis. he had his rules on it. what do you do with plessy? and then brown.
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you have lots of precedents out there. you have justice brennan redoing the political question in baker the car. i'm not saying he overrule anything but it doesn't look like it used to look. they change a lot of things. when people get what they want then they start yellingstare decisis. as if that is going to stop you. the constitution itself is the ultimate stare decisis. [applause] caleb nelson has the nice piece on stare decisis. you have a choice between two, you would on a clean slate to use the at the court has ordered chosen a. the choices were there court has chosen and you don't change it.
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but if the court has chosen see -- chosen c than the statue gave you a and b then that is a ruling. everyone thinks that does not deserve stare decisis. you get people saying constantly, i think that what we have done, the slaughterhouse case is wrongly decided. my point in mcdonald was i didn't have the answer. everybody agrees this wrongly decided that why are we applying it? [laughter] simple as that. i think we have to do more than just say we are not applying it for these reasons.
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it leaves you wanting an explanation. i wasn't trying to grandstand and it goes back to my -- that we owe him an explanation even if you come up the other way. you owe him and the nation. -- you owe him our nation. -- an explanation. we all agree slaughterhouse is wrongly decided. it has had a profound effect on this country and you and i know it. when you guarantee citizenship to people, community of citizenship and then you read it out of the constitution or you trivialize it or minimize it, i said john you are a member of my club. you have all the beverages of privileges and
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immunity and membership in this club. then i rewrite this for the purposes of immunity for me you get to ride the elevator once a week and that's it. that's a heckuva membership. everybody else's swimming up there and the gym they are in the sauna and i get to ride the elevator once. that's how i feel about the immunity clause. i have a personal interest in this. i lived under segregation. we talked about all around these things. this is at the very heart of it. go back to dred scott. no black could be a citizen. they went on and on about the other stuff. the 13th, 14th amendment answered his question. it guaranteed citizenship and all the privileges of immunity of citizenship.
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then we sit here and we read it out of the constitution. you said why do you get passionate about it. it is the heart and the soul. it's not just a subject. it is not just a theory. it is what makes it all work. it was a way to perfect a big blemish on this country's history. the blemish of slavery. it was a big contradiction here at and we fought a war over it. mr. malcolm: once you get what you want it is a one-way ratchet. then it becomes settled law , which ought not to be revisited. justice thomas: if i were on the court of appeals or a district court, and i have to apply the precedent. i did that for the two minutes i was on the d.c. circuit. i would do that. but we are in a different place.
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i believe we are obligated to think things through, to re-examine ourselves, back over turf to make su we are right. now you have about 70. eference how did this come to be? is is a positive or negative development? what are your thoughts about hat? justice thomas: if you think the ightly decided it's a positive development. if you think we have been wrongly deciding cases -- i on't know. everyone comes to court -- for thinking there are more cases
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and that we wind up doing what we were doing before when i got to the court, it was close to 120 cases. that was a lot. the court had me doing a hundred nd 50 at some point. i think around 100 and 110. but i don't see any prospects with our discretionary jurisdiction. also take this into consideration other than the health care, the affordable care act, which seems like a misnomer considering all the things that are going on. [laughter] the affordable care act was one of the last pieces of major legislation, it is not like you have a lot of that. where the real action is was the activity that occurs are in the agencies. i don't know if there is that much legislation that is going on that requires review. when i first got to the court we had the new bankruptcy code and we had a view of those cases.
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at one point we got the new -- in the criminal area -- and what we are doing in the area of criminal law and collateral review, i think you are going to get a lot of review in the lower courts on that. it has not been major legislation. i don't now what the source of the litigation be, everything is that a lot of the -- i don't know the total impact but a lot of the cases are being siphoned off to mediation or arbitration. we have a very light review of that under the federal arbitration act. they are not coming up like a normal commercial litigation through the federal court system it is off to the side. that may be across consideration for the companies that are engaging in this. >> there is very little
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legislation, you don't like the affordable care act here and i understand that. i totally get that. bad for the country that it was done on such a one-sided -- i get that. one interesting point is that that legislation and many other bills that passed when they passed do exactly what you aid. i'm going to empower an agency to go out and do good. the agencies effectively performing legislative function, executive functions and the judicial function. how do roche those -- how do you approach those types of hings? you made reference to justice scalia's -- how do you approach them differently?
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justice thomas: i do my job. to be honest with you, i think if a cases worthy you take it. i don't get into we may not win this or that's not my job. our job is to decide cases. cases and controversies are the administrative law area is obviously complicated. it is our job. it is complicated by things like chevron, by our willingness to say, let the expert agency decide and then give them all this running room, so i think -- i did not haven't asked to grind your it i do think that when we on't review things we advocate are responsibility -- abrogate our responsibility. a part of it is a check and eview the cases.
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you don't review cases when you say we defer to virtually anything the agency does your it that is not a review. we don't do that through a istrict judge. district judge is our article three judges. they have the same status we have. but we do that through the gencies. i have written again on this. as of a constitutional matter, we are obligated to be more exacting in our review that does not mean you don't show them some deference that we are obligated to do more than just wave our hands at it and be done with it. that is no review at all. >> how helpful do you find
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amicus briefs? justice thomas: which ones? [laughter] justice thomas: if you have 30 amicus briefs there are people -- the aclu for example, you may not agree what they say, but they are good. that is a good brief you should read. the u.s. government -- you read that. you read the briefs of state if it is for something that they say 10 states are running something. but some people like law professors for a better world, that one is a one off kind of group. you might go through it, but they start out with some polemic, there was an amicus brief we had about electrical engineers supporting neither party. it had to do with a grid, they
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ere explaining an electrical grid. i thought it was excellent because what the heck a grid was neither party was explaining it. these engineers helped the court. they were friends of the court. you run across these technical ases also. intellectual property groups might explain a technical patent area. hat is a good brief. for me a brief if it is thorough if it is honest, if you can look and say this is an honest broker, if you agree with that position then this is an honest brief.
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then you for the repeat people, you read it again. if they make a point, a good point, you will read the next brief. but if somebody -- just sort of a a one off, you don't spend a lot of time with them. >> we are nearing the end of our time. you and jenny have to go during the summers and you travel the country. tell us a little bit about that xperience. why you do that and how does hat help revive you? justice thomas: this is a wonderful country, and we fly or most of it. we fly from destination to destination. i have never been to east tennessee. i grew up in georgia. the thing about segregation, we
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have it going on with things like political correctness and all sorts of things in our society -- it created fear. we couldn't talk to each other. you couldn't go any place. the fear in georgia was that i couldn't go to small towns. i had to do that with my mother now. i wanted to see small towns, to see our country. now that i can do that without fear, we thought that we would do that. my poor wife, she let me do it. she came along and we both love t now. we have the same bus we have had for 17 years. this is east tennessee. have you ever been to severe though --sevierville. dolly's -- what was it?
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dolly world. what did we go see with the horses? anyway -- we have been to a lot of different places and out to the west, we like the mountains. we went down to florida. most of all you see the citizens f the country. an rv park is very democratic. with a small d. it is some of everybody there. the people are camping out of the back of a motorcycle which is really interesting to see. [laughter] people the first time -- we have a 40 foot coach and we are next to the civil teardrop thing that was about the size of a table. this is embarrassing. everybody is there, the truck stop, flying j, you run into people. it was right after bush v gore. i love the people. the truckers and everybody. i love it all.
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i give you just two stories. bush v gore whether you know it or not was a bit controversial. right? [laughter] you talk about feeling the heat around here. i had to take my bus down to florida the week after bush v gore. i took security with me that time. i stopped in brunswick, georgia to refuel. at the flying j. it is not like a car. it is a real professional thing when you do a bus. you got to put your fueling gloves on and look around like you know what the heck you're doing. there are all these 18 wheelers are around nd this trucker comes up to me and says anybody ever tell you you look like clarence thomas? i said to him, yeah.
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[laughter] and he said i bet it happens all the time, doesn't it? and then he went on about his business. [laughter] we were recently on the road, these things happen to you. it's great. even the breakdowns are great. we were in pennsylvania and you are going up these mountains, endless mountains. that was it. the bus speed was ending, so the bus was dying. finally we pulled into a truck stop into a flying j in pennsylvania after we got out of new york. we look around and there are these two guys. this little mobile van repair with half a set of teeth between them. [laughter] they knew how to fix diesel motors and we were back on the road. these guys were great. they were great to talk to. t was wonderful.
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everything about it i love it. this is a great country. we have done about 40 states. we have met a lot of people and been a lot of places. it is freedom for me. mr. malcolm: also most people don't know who you are? justice thomas: most people don't care. it also tells you that -- it shows you the constituency for he constitution. it shows you it is not the city. it is not the people who are doing all the talking, and the barricading. it's just a person camping out of the back of his motorcycle the wants to be left alone and enjoy his country and raise their family. they are just friendly. if you go to an rv park people wave and they come.
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there are some that are too funny. you just want to sit there. they want to come and chitchat. they don't know you from a hill of beans, but they are just friendly. i think it has shown me up art of the country that you normally would not see. i would not have seen in georgia and i would not have seen in washington, d.c. >> in a moment i will bring ed meeseback. just to ask one more question which is a chance for a national title for nebraska this year? justice thomas: we will remain defeated until we are robbed. [laughter] [laughter]
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mr. malcolm: i think we all will agree that we have been treated to great evening here with justice thomas. [applause] if you would join me here, we have something to present to you first and that is this is our defender of the constitution award. we don't do it every year unless we have a real defender. [laughter] it says defender of the constitution award, 2016. congratulations. [applause]
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>> what i'm about to do ought to be called the coals to new castle award. the commentaries on the constitution written by joseph story. you can add to this that you already have in your office. this is for your home or even better, for the bus. [applause] >> i might share with my colleagues. mr. malcolm: i think this might be a better one for the colleagues, because it is a shorter version. i have an interest in this because i was privileged to write the forward. [applause]
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>> we have a special webpage at to help you follow the supreme court. go to and select supreme court. once on our supreme court page you'll see four of the most recent oral arguments. click on the on view link. in addition you can find recent appearances by many of the
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supreme court justices or watch justices in their own words including one-on-one interviews in the past few months with justices cagean, thomas and ginsberg. there is also a calendar for this term. a list of all current justices with links to quickly see all of their appearances on c-span as well as many other supreme court videos available on demand. follow us on supreme court at >> this weekend on american history tv on c-span 3, saturday evening at 7:00 eastern, from president lincoln's cottage in washington, d.c. we'll have a conversation with candace hoover about her book lincoln's general's wives. four women who influenced the civil war for better and worse. >> you can see too that women have a meanings of reinforcing either the best in their husbands or the worst. and that's what this study is.
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>> then at 10:00 on real america, the 1953 film american frontier. >> they flashed the word from the field to the production office in williston and there to the production office in oklahoma. day and night our little telephone board was lit up like a christmas tree. calls from new york, california, houston, bit by bit we began to realize how big a thing this was. >> the film promoted the financial benefits for farmers and leasing land for oil exploreation and was funded by the american petroleum institute. jack at 11:00, novelist, london and how his novel "the call of the wild" influenced general railingses of writers. >> his ranch, the beautiful scenery and elsewhere in the
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south pacific to center himself and to find release and relief from the rigors and the degradeations of the cities. >> and at 6:00 eastern, we visit the military aviation museum in virginia beach. >> this basically taught all of the military aviators, army and navy, how to fly. many guys never even saw an airplane coming from the farms and anywhere you can think of and the first airplane they saw steerman.eing >> on tuesday, president obama awarded 21 recipients the presidential medal of freedom. the nation's highest civilian award. honorees including former nba


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