To Whom Does the Constitution Belong? Justice Thomas on the Role of the Courts
The Constitution belongs to the people, Justice Clarence Thomas told an audience of about 200 on Wednesday night. This week was the 25th anniversary of Thomas beginning his term on the Supreme Court. To help mark the occasion, The Heritage Foundation held a conversation with Thomas for its annual Joseph Story Lecture.
Led by John Malcolm, director of the The Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies, the conversation covered a number of topics, including Thomas’s not entirely deferential views on judicial precedent, the Court’s workload, his friendship with the late Justice Antonin Scalia, the judicial confirmation process, and judicial deference to administrative agencies.
Throughout the conversation, Thomas returned to the theme that the Supreme Court has a duty to the people. He told the story of a man who rushed up to him while he was touring the Gettysburg battlefield and asked him to sign a document. When Thomas asked what the document was, the man told him it was Thomas’s opinion in Federal Maritime Commission v. South Carolina State Ports Authority, which concerned the question of whether states have sovereign immunity before federal administrative agencies. Amused that anybody would think the opinion important enough for him to autograph, Thomas asked the man why he wanted him to sign it?
As Thomas recounted the tale, the man gestured at the battlefield and said: “This is what it’s all about.” The man went on to say: “I read all your opinions because I can understand them.”
Thomas explained: “I think we are obligated to make the Constitution and what we write about the Constitution accessible to our fellow citizens.” The Constitution, Thomas continued, “is theirs, and I think we hide it from them when we write in language that’s inaccessible. […] Genius is not putting a two-dollar idea in a twenty-dollar sentence. It’s putting a twenty-dollar idea in a two-dollar sentence, without any loss of meaning. But that takes work. And it takes organization and editing. […] We owe it to people to present to them their Constitution in a way they can understand it to enfranchise them constitutionally.”
When asked what he would say to those who have lost confidence in the Court, Thomas said he would address his colleagues instead: “What have we done to gain their confidence? I don’t think people owe us, reflexively, confidence. I think that’s something we earn. You try to do your job in a way that they can have confidence in what you do. […] Perhaps we should ask ourselves what we have done to not earn it or to earn it.”
He continued: “You simply try to live up to the oath you took. You took an oath to show fidelity to the Constitution. You live up to it. You took an oath to judge people impartially. You live up to it. In this city that doesn’t go for much. You take heat for it […], but that’s part of the job. You’re supposed to be beaten for it. You’re supposed to do your job. Hopefully someone will run up to you one day with your Federal Maritime Commission opinion […] . It does mean something to you when an average citizen has confidence that you did your job fairly, you did it right, as best you could. He didn’t say he agreed with me; he said he could understand it and he accepted it because of that. “
Later, Thomas discussed his hobby of traveling around the country in a bus between Court terms. He said: “An RV park is very, very democratic with a small ‘d.’ It is some of everybody there. […] . I love the bus, I love the diesel stuff, I love the people, the truckers, everybody. This is a great country. We’ve done about 40 states, plus met a lot of people, been a lot of places. It’s freedom for me. […] It shows you the constituency for the Constitution. It’s not the city. It’s not the people who are doing all the talking, prevaricating. It’s just the person camping out of the back of his motorcycle who wants to be left alone, who wants to enjoy his country, who wants to raise his family.”