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tv   Supreme Court Justice Clarence Thomas Delivers Remarks at the Heritage...  CSPAN  November 25, 2016 1:24am-2:40am EST

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sirius x.m. radio and the mayor of new jersey. >> we have to understand that we have to unite with other people, right, to win. the object is to win. we don't just want to struggle for the struggle sake, right? there are thousands of people in our community -- there are hundreds of people that have been beat. people that are dead. all kinds of things going on. we're not act vithses and revolutionaries because it was fun. my mother and father didn't participate in the movement for medals for twitter, for instagram. they did it because it was necessary. >> followed at 10:00 by ben sass on american value, the founding fathers and the purpose of government. >> it turns time-out meaning of america is persuasion. the meaning of america is love. the meaning of america is building a better product or creating a better service or
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persuading someone to marry you or persuading someone to join your church or synagogue, there's a civic single mindedness in america. opioid he discussion of abuse and addiction. >> they have to have some will power. but they also have to change their brains back. this is a biological thing. this is your -- your brain is an organ. and once these doctors hand you these pills an say hey, we took a molar out of your mouth, take these pills, for a lot of people, those pills damage that organ. >> watch on c-span and c pan.org and listen on the free c-span radio app. >> now an interview with supreme court justice clarence
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thomas marking the anniversary of his appointment. this is about an hour and 10 minutes. >> 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. john: we are so us this evening, and of cour , 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.
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[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 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
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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. 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
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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 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
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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. 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
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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 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]
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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. 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
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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. 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
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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 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]
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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. [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.
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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 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]
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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. 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.
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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 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.
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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 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.
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he runs up, and he's really perspiring. it's june. mr. malcom: a civil war reenactor? justice clarence: no, just a guy. 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
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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. 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
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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. 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.
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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 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.
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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 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
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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 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
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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 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
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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 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
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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 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.
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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. 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
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you are writing majority you don't have a problem. i have never had a problem with that. any number of opinions started 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.
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>> 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 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
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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 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
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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 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
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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. 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
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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. 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
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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. 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
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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. 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.
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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? 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
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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 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
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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 taking a quick step to try and catch them. that was the appointment example who is missing. he is not there. there is no one to catch up to. .e was, for me, a fungi i would often just going -- go in just to talk. if one of his clerks told me he was down a little, i would go in and we would laugh and leave, and hopefully he would feel better very. in light of this
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vacancy, another one of these days we will have another confirmation hearing and there are a lot of people who believe the confirmation process is broken. your confirmation being one example of that. i am curious, your thoughts on whether there are any hopes to improve the confirmation process. j. thomas: there is always hope, but this city is broken in some ways. i have been here most of my life. the -- i think we have become very comfortable with not thinking things through and debating things. that is one of the things i love about the court. you can actually talk to people about things. i think we have decided that rather than confront the dixie -- disagreements and
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differences of opinions, i will just annihilate the district -- opinions of the person who disagrees with me. i don't think that will work in a republic or civil society. at some point, we have got to that we are destroying our institutions and undermining our institutions. them, going to destroy the day is going to come, when we need to deal the institutions and the integrity of the institutions. even when you disagree with i don't- you notice attack personally my colleagues. i disagree with them strongly. importantthink it is for me to leave them standing and the institution standing. sharp contrasts and points of view. i don't think this is going to change in the city until we get back to the notion that we are
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-- decide things based on logic and reason, as opposed to who yells the loudest or who has the meme orrrative or best some nonsense. interviewer: there are a lot of people in this country who believe that the presidency and congress is irretrievably broken. there are a lot of people who have lost confidence in the courts, including your court. including it as just another political branch. what do you say to people who believe that? j. thomas: i say, what have we done to gain their confidence? oson't think people confidence. owe us confidence.
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i think it is something we earn. you try to do the hard thing. confidence,n have that they can trust. perhaps we should ask ourselves what we have done to not earn it or to earn it. and i am not so sure i have all of the answers to that. but one of the things i tell my clerks is simply, you simply try to live up to the osu took. you took an old of fidelity to the constitution. you took in both to judge people ath to judge people impartially. in this city, that doesn't go for much. you are supposed to be beaten for it, that is part of the job. hopefully, someone will run up to you one day with your federal
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maritime commission and have a andof confidence, saying -- that doesn't sound like a whole lot. most people probably don't even care about it. meant doesn't -- does something to you when an average citizen has confidence that you did your job fairly. you did it right, the best you could. he didn't say he agreed with you, he said he could understand it and accept it because of that. interviewer: certainly you, and justice scalia, and some of your callings when the court has issued political opinions, will call them out for that. hope that perhaps your colleagues over time will be persuaded? what do you hope to gain by putting that out? j. thomas: i don't know, i think that if you are going to do process, you run the risk of broad policy decisions. you tend to stray far field from
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law. what justice scalia was saying rules, its to have got to do some work. no one is really that interested in it that is heart of the reason -- in the commercial cases, it is a multi-cap -- four factor test. and is not much of a test. i think justice scalia tests, we with the have got to have something with more teeth to it, margaret to it. then that sort of the test. these leave rooms for you to come out where you want to go with policy preference. hown't know whether it is people are political in terms of the politics, but the jurisprudence allows for that criticism. , people get --sm
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.an easily cast aspersions but when you try to do is your job, the way you know. ago, a court i really enjoy being on was composition over 11 years with o'connor, and stevens. we would gather a long time. one of the things one of my colleagues with whom i rarely -- clarence, you are consistent. i think whether you are a referee and basketball or baseball, you won't call it the same way. all at the same way for both sides.
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therviewer: and like maritime guy, he wasn't necessarily paying you a it.liment you appreciated i want to talk about certain traditions even mentioned substantive due process. for that, i want to take a broader view. you said the constitution is not a stand-alone document. and that it can really only be properly understood in combination with the declaration of independence. can you elaborate on that? j. thomas: my point was, we have to understand why -- this was a question answered in the mid-1980's. why this republic? why not something else? why not what the french did? government by consent, inalienable right, what were we protect for the structure in our constitution.
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look at the constitution, which is the positive document. declaration is a backdrop. republicstand why this -- white is separation of power so important? why is federalism so important? why are enumerated powers so important? important?o you give up some of your rights in order to be governed. not all of them. it is that limitation, the protection of that liberty -- i read a lot of justice scalia's separation of power readings this summer. they all seem to come back to .ne thing protecting individual liberty. it wasn't just to have separation of powers. it wasn't just to have federalism.
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it wasn't just to have enumerated powers. it was -- you had these in order to protect liberty. where does that start? interviewer: in the declaration. people will talk about the bill of rights as if that is the cake. were 10 amendments to the actual documents, our charter of freedom that we people work to consent to be governed by this. those structural protections are what gave us liberty. j. thomas: it is interesting. i did not fully understand that until the 1980's, with 10 and john murray. i certainly didn't get it from law school. the amendments were a big dual -- deal in law school. structure is so and perhaps, that is where on constitutional issues,
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that is worst justice scalia and i saw i -- i can i the very beginning. this is a written constitution. this is an common law. like, we will make it up as we .aw in common law you have to have a written document. written amendments, which are really important. a positive document. -- the that the structure is important -- the most important part of it. and that is why you see, for example, that i would write extensively on conference clause. you are eviscerating the relationship of what the national government can do. enumerated power.
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if you expand that, you go from regulating commerce to economic commerce. effects on that is quite a different test on regulating commerce. interviewer: you just talked on referring past -- you talked about privilege, substitute due process. and you look at clauses in terms of economic liberties. which clauses do you gravitate towards? privilege ofause, immunity clause, process clause? j. thomas: whatever is in the constitution. it is all there. bill of attainder is there, the third amendment is there, the second amendment. we want to print -- pretend that doesn't exist. first amendment, congress shall make no law protecting the establishment of religion.
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it has establishment of religion. you go back to the language. what does it mean? we are obligated to do that. absolutely obligated, or people's theories. judge grounded a lecture on theories. these theories can spin off in totally different directions than the limitations built into the constitution itself. i think that is quite important. interviewer: that is great. you talked about limited enumerated powers for government, how the privilege clause is right there. --'s talk about your view you have been criticized depending on which side of the aisle you happen to be on, or more willing than some of your colleagues to revisit past present.
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the court has revisited preference -- precedents in some way. i am curious to hear your views on these constitutional questions and how would you respond to your critics about this? i don't care about the criticism. that's why i talked. i read everything i could get my hands on. the theory is all over the place. .ustice goldberg's those strict, rules -- when you win those cases -- when they need to overrule cases in order to do what he thinks is the right
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thing, a loose set of rules are decisive. , but heis rules overrules with the tyson. do with plessy versus ferguson? when you get brown? you have lots of precedents out there. then you have justice brennan redoing the political question document. car.aker v. it didn't look like it used to look. the point is, they change a lot of things and when people get what they want, then they start yelling starry decisive. that is supposed to stop you. i think the constitution itself is the ultimately -- ultimate starry decisive. it is written. [applause]
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caleb nelson has a nice piece. i am not saying it is totally -- the statute allows you to choose between a and b. you get the starry decisive. if the court has chosen see, when the statute give you a and b, that is fairly erroneous. everyone thinks that that does not deserve sorry -- starry d ecisis. let's do substantive due process. you get people saying constantly, i think what we have , say the slaughterhouse case, wrongly decided.
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the point wasn't, i have the answer. i sit everyone agrees it is wrongly decided, and why do we apply it? that's it. simple as that. i think we have to do more than zip up. we had to say we are not applying for these reasons. ecisis leaves you wanting an explanation. i wasn't trying to grandstand. it goes back to my fmc guy. we owe him an explanation. even if you come out the other way, you owe him an explanation. we all agree that slaughterhouse is wrongly decided. it has a profound effect on this country. you know it and i know it. guarantee citizenship to
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people that can not be infringed upon. and you read it, or trivialize it or minimize it. if i say to you, you are a member of my club. you have all the privileges or immunities of membership in this club. then i rewrite the privilege of immunities to mean you get to ride the elevator once a week. and that is it. that is a heck of a membership. [laughter] everyone else's swimming and in the gym. they are in the sauna. i just get to ride the elevator once. that's how i feel about the privilege of immunities clause. as i said about the battle of gettysburg. i have a personal interest in this. i lived under segregation. we talk about all around these things, this is a very hard -- go back to dred scott. what does he say? that no black can be a citizen.
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he goes on and on about the other stuff, kansas nebraska act, etc.. amendment3th, 14th answered his question that guaranteed that citizenship. and all of the privileges of immunity of citizenship. then we sit here and read it out of the constitution. do you gety passionate about it, it is the heart and soul. not just the subject, just a theory. it is what makes it all work. it was a way to perfect a big blemish on this country's history. that is a blemish of slavery. a big contradiction. we fought a war over it. so it really is, once you get what you want, a one-way ratchet. then it becomes settled law. which ought not to be revisited.
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if i was on the court of appeals or the district court , i have to apply the president. i did that for the two minutes i was there. and i would do that. i would faithfully do that. but we are in a different place. and i believe we are obligated to think things through constantly. to re-examine ourselves, go back over to her, authority plowed. torment yourself to make sure you are right. you make reference to the fact that you have four cases you would hear a day. now you hear about 70. you make reference to the fact that you have four cases you would hear ais this a posite development? what are your thoughts about that? we haves: if you think been wrongly deciding cases, i
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don't know. court,e comes to core -- 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. done 150 or so at some point. , but i around 110 or so don't see any process -- prospects with our discretionary jurisdiction. that that is going to happen anytime soon. also, take this into consideration. the health care, the affordable care act, which seems like a misnomer considering how things are going on. [laughter] the affordable care act was one of the last pieces of major legislation, one of the few pieces of major legislation. it is not like you have a lot of that.
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the real action was the activity legislating the terrorist action, the agency. i don't know there is that much legislation that is going on that requires review. when i first got to the court, we still had to be bankruptcy code and quite a few of those cases. in thepoint, we got criminal area, a ton of litigation there. and what we were doing in the area of hope -- criminal. i think you are going to get a lot of review in the lower courts on that. but there has not been major legislation. i don't know what the source of the litigation would be. another thing is that a lot of the -- and i don't know the total impact of this, but a lot of the cases are being siphoned were being diverted to mediation or arbitration.
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and we have a very light review of that under the federal arbitration act. they are not coming up like the normal commercial litigations through the federal court system. there are often the side. i think that he a cost consideration for companies. john: you mentioned before that there is very little legislation regarding whether you happen to like the affordable care act. bad for the country that it was done on such a one-sided -- >> know i -- >> know, i get it. but the many other bills that passed when it passed, it was exactly what you said. i am going to empower some agency to do good. a nebulous direction. asians are off, effectively performing -- legislative
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function, executing those, and executive function, performing a judicial function. how do you approach those sorts of cases when you are trying to interpret law and figure out where the line is? you referenced justice scalia "our" differently? to -- if: i think there is a split, you take the case. i don't get into, we may not win this. that is not my job. my job is to describe -- decide cases. the administrative law areas, obviously complicated. but it is our job. it is complicated by things like chevron. , letr willingness to say the expert agency decide and
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give them all of this running room. more running room than we would give an article three-judge. is -- andk this unified written extensively in these areas -- and i did not have an ax to grind, when we we abdicate things, our responsibility. we are required -- there are checks and balances in our system. apart from the check and the judicial standpoint, is to review the cases. you don't review cases when you -- defer todiffer anything the agency says. we don't do that to a district judge. district dredges our article three-judge is, they have the same status -- and courts of appeals have the same status we have. but we do that to the agencies. i think we are -- and i have aitten on this -- it is
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constitutional matter, we are obligated to be more exacting in our view -- review. i think we are obligated to do more than wave our hands at it and say well, chevron, and be done with it. amicus -- how helpful do you find amicus reads? j. thomas: well, if you have 30. there are people who are credible. the aclu is credible. you have people where you may not agree with what they say, but they are good. that is a good brief you should read. you have government. you read that. you read the briefs of states. 10 statesomething's
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are writing. but some people, like law professors for a better world -- [laughter] that's sort of like one-off sort of group. you might poke through, that they start off with something -- there was an excellent amicus brief we had by an electrical engineer supporting neither party. and it had to do with a grid. they were explaining an electrical grid. and i thought it was excellent. because i didn't know what the heck a grid was and neither party was explaining it. so these engineers actually helped report. -- helped the court. you run across these in technical cases too. ofeone might be -- sort intellectual property group might explain it technical
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patent carrier, and that is a good brief. think, for me, a brief, if it is thorough, if it is honest, if you can look and say this is an honest broker. you don't agree with that position, but this is an honest brief. you repeated again. if they make a point, a good point. you read the next brief. someone is a one-off, you don't spend much time with them. we are nearing the end of our time. i want to step back. you and jenny go during the summers and have a lot of fun, you travel the country. tell us a little bit about that
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experience. some of the great experiences you have while you do that. how did that help revive you? j. thomas: first of all, this is a wonderful country and we fly over most of it. we fly from destination to destination. i had never been to east tennessee. i grew up in georgia. the thing about segregation, and we have it going on with aims like political correctness and all sorts of things in our society. it created fear. you couldn't talk to each other. you couldn't go in a place. was, ifear in georgia couldn't go to small towns. i do that with my mother now. i wanted to its -- to see small towns, our country. now that i can do that without fear, we thought we would do it. i toured my poor wife -- of
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course, she let me do it. we both love it now. we have the same bus, we have had for 17 years. tennessee, if you've ever been to severe fill dollywood.r we had been to a lot of different things. we've been out to the west. we like the mountains. we get down to florida. but most of all, you see the citizens of this country. it is an rv park, is very democratic with a small d. some of everybody there. people camping out with motorcycles, which is interesting to see. coach and wefoot were next to this little teardrop thing the size of this
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table. this is really embarrassing. but everyone is there. the truck stops, i run into people. gore.after bush v. i love this stuff. i love the diesel, the truckers, everybody. i love it. two stories. gore, which was a bit controversial. [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 certainly took security with me that time. [laughter] i stopped in brunswick, georgia to refuel. car, its ae a professional thing with the bus.
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you have to put your fueling gloves on and look around let you know what you're doing. all of these 18 wheelers are around. this trucker comes up to me and , anyone ever tell you you look like clarence thomas? [laughter] yeah. i said to him, he said, i bet it happens all the time doesn't it? and he went about his business. [laughter] these things happen to you on the road. even the breakdowns are great. we were in pennsylvania, you are going up these mountains. endless mountain, the bus speed was ending. the bus was dying. a truck stop, a flying j in pennsylvania as we
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get out of new york. and we look around, there are these two guys in a mobile van with half a set of teeth between them. [laughter] knew how to fix diesel motors and we were back on the road. and these guys were great. you were great to talk to, you had to figure out some things [laughter] but this was absolutely wonderful. everything about it, i love it. this is a great country, we have done about 40 state. met a lot of people in a lot of places. it is freedom for me. john: i think most people don't know who you are. j. thomas: most people don't care. and it also tells you, it shows you the constituency for the constitution. it shows you it is not the cities, it is not the people doing all of the talking and all
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of the barricading. it is just a person camping out of the back of his motorcycle. wants to be left alone. who wants to enjoy his country, wants to raise his family or her justy, and they are friendly. if you go to an rv park, people wave, they come by. you just want to sit there and they want to come and chitchat, and they don't know you from the hill of beans, but they are just friendly. it has shown me a part of the country you wouldn't normally see. i would not have seen in georgia , and i would not see in washington, d.c., two very different purchase, but both limited perches. moment, i will have a special presentation and i would ask afterwards, if the people in the audience would remain seated a few moments while justice thomas leaves. but i have one more question, which is -- any chance for a
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national title for the nebraska cornhuskers? j. thomas: we will be undefeated until we are robbed. [laughter] [applause] john: well i think we would all agree that we have been treated to a great evening here with justice thomas. [applause] justice thomas, if you would join me here. we have something to present to you. this is our defender of the constitution award. we give one a year, and we don't give every year unless we have a real defender. [laughter] the honorable justice clarence
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thomas, the defender of the constitution award 2016. [applause] >> when i am about to do must -- should be called the newcastle award. a set of am giving you the commentaries on the constitution written by joseph story. to -- youcan add probably already have it in your office, but this is for your home. [laughter] or even better, for the bus. [laughter] j. thomas: do you mind if i share it with my colleagues? [laughter] [applause] >> very good.
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well, i think this might be a better one for the colleagues because it is a short version. [laughter] called the familiar exposition of the constitution of the united states by joseph story. and i have a particular interest in this because i was able to write forward. [applause] >> we have a special webpage at c-span.org help you follow the
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supreme court, go to c-span.org and select supreme court in the right-hand top of the page. once on our supreme court page, you will see four of the most recent arguments heard by the court this term. link to the view all see all of the oral arguments covered by c-span. you can find recent appearances by many supreme court justices were watched justices in their own words, including one on one interviews in the past few months with justice kagan, thomas, and ginsburg. there is also a calendar for this term, a list of all current justices with links to see their appearances on c-span, as well as many supreme court videos available on demand. follow the supreme court at c-span.org. this weekend on american history tv on c-span3, saturday evening at 7:00 eastern. from president lincoln's cottage in washington, d.c., he will have a conversation with candace
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cooper about her book. four women who influenced the civil war for better or for worse. >> you can see that two of the women have a means of reinforcing either the best in their husbands were the worst. and that is what this study is. america,00, on real the film america frontier. >> from the production office at williston, and from there the central 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 of leasing land for oil exploration. it was funded by the american petroleum institute.

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