Glenn C. Loury, Randall L. Kennedy, and Robert P. George discuss Supreme Court Justice Clarence Thomas’s principles and legacy, and the price of intellectual nonconformity. Ilya Shapiro moderates their conversation.
Audio Transcript
Brian Anderson: Welcome back to the 10 Blocks podcast. This is Brian Anderson, the editor of City Journal. This week’s special episode features a discussion about Glenn Loury’s essay “Clarence Thomas and Me,” which appears in our winter issue and examines the Justice’s legacy and principles alongside Glenn’s own experience as a black conservative public intellectual. Glenn Loury, a Manhattan Institute Paulson Fellow, and the Merton P. Stoltz Professor of Economics at Brown University, is joined by Robert George, the McCormick Professor of Jurisprudence and director of the James Madison Program in American Ideals and Institutions at Princeton University, and Randall Kennedy, the Michael Klein Professor of Law at Harvard. Their conversation is moderated by Ilya Shapiro, a senior fellow and director of constitutional studies at the Manhattan Institute. You can find Glenn Loury’s essay about Justice Thomas in our brand new winter issue, which is now out online and in print. We hope you enjoy.
Ilya Shapiro: Good evening. My name’s Ilya Shapiro. I’m a senior fellow and director of constitutional studies here at the Manhattan Institute, and boy, are you in for a treat tonight. I look forward to watching this panel as much as all of you, I’m sure. So let’s get to it. I’ll quickly introduce the panelists and the author of the captivating article in City Journal by Glenn Loury called “Clarence Thomas and Me.” So Glenn Loury, the author, is the Merton P. Stoltz Professor of Economics at Brown University and a Paulson Fellow here at MI. He has earned distinctions like being a distinguished fellow of the American Economics Association, a member of the American Philosophical Society, and a fellow of the American Academy of Arts and Sciences. He really does it all and additionally, he’s the host of the popular podcast, The Glenn Show. After Glenn will be Randall Kennedy, who’s the Michael R. Klein professor at Harvard Law School, a legal scholar, former clerk to Justice Thurgood Marshall who received the 1998 Robert F. Kennedy Book Award for his work on race, crime and the law and has authored several other books.
And last but certainly not least, Robbie George, Robert P. George, the McCormick Professor of Jurisprudence at Princeton, who’s founded the James Madison program in American Ideals and Institutions, waited for me to graduate before founding that, so take that for what it’s worth. He served as the chairman of the U.S. Commission on International Religious Freedom, the President’s Council on Bioethics, and as a presidential appointee to the U.S. Commission on Civil Rights. And while it’s not normally my want to plug events for other institutions, if you have a moment, the 30th anniversary Festschrift for Robbie’s Making Men Moral at AEI, I commend that conference to you whether you’re into philosophy, politics, political philosophy, or just really smart people talking about interesting things. Alright, with that I will turn it over to Glenn to talk about, well, Clarence Thomas and himself and their relationship, personal and intellectual as it were.
Glenn Loury: Thanks very much Ilya. Happy to be doing this. I wrote this piece about Justice Thomas because I think there is an injustice. I think that Clarence Thomas’s achievements that his life story, I think his biography are exemplary of what’s possible in this great country, and that his impact on American law deserves to be celebrated regardless of whether or not one agrees in every respect with the various legal and philosophical disputes that are at issue. I think there’s something enigmatic about the way in which Justice Thomas is received in the American public conversation, about the way in which his character, his competence and his independence have been questioned, about the fact that his conservatism can’t be taken at face value as positions which honorable people might arrive at, but rather are taken to indicate some kind of betrayal or inauthenticity on his part. I think that his blackness is critical to assessing the meaning of his professional and personal life, that he exemplifies something in his journey from obscurity and inauspicious beginnings to the height of American politics, and law that his achievement should be celebrated.
I wanted to take the opportunity in this piece to affirm that position. I do so both out of conviction but also out of a sense of affiliation with Justice Thomas at a personal level. We were both born in the same year, in 1948. We met in the early 1980s in the first Reagan administration, when he was chairman of the Equal Employment Opportunity Commission and shared political and philosophical ideas and conversation with one another. We prayed together as friends on the telephone during his ordeal in 1991 during the confirmation hearing process, and I visited with him in his chambers and discussed law and life with him over these years. Justice Thomas is a great man. We don’t have to agree with everything that he says in order to acknowledge that, and that’s the point I wanted to try to get across.
Ilya Shapiro: Thanks very much, Glenn. Next we’ll have Randall Kennedy, please.
Randall Kennedy: Thank you very much. Professor Loury writes in his article that it’s no longer possible to deny Justice Thomas’s stature and his influence on American life and law. That’s all together true. I don’t think anyone can sensibly deny that he is powerful. The issue is how does he use his power, and I think he uses his power very badly. His use of power does not bring forth from me celebration. It brings forth from me mourning. Why do I say that? I say that because I judge his use of power in the following way. Do his votes, his opinions, his votes, do they advance?
Do they advance American democracy in a good fashion? I do not think that they do the things. I guess the area of law that I pay most attention to with Justice Thomas has to do with his opinions regarding race relations law and with respect to that, there’s one case in particular that really grabs me by the throat and that case is Shelby County v. Holder, a case in which the Supreme Court of the United States eviscerated the most effective law of the secondary reconstruction, the Voting Rights Act of 1965. I think the Supreme Court of the United States just made up a theory to eviscerate the Voting Rights Act. It was a five–four decision. Justice Thomas was one of the five, and yes, I hold it against him that he was a part of a force in American life that hobbled an extremely important statute and a statute that was one with blood.
I ask the audience to think about this. Imagine we are heading towards May 17th, 1954, May 17th, 1954 will be the 70th anniversary of Brown v. Board of Education. Let’s do a little thought experiment. What would this Supreme Court, what would our nine justices do? What would they have done in 1954 if we could just sort of put them in a time capsule with their present thinking and put them back in 1954? Would they have come up with Brown v. Board of Education? Justice Thomas says that he’s an originalist. Would originalism lead him to strike down separate but equal? I don’t think so. Would originalism have him strike down anti miscegenation laws that in 1967, the sort of laws that were invalidated by the Warren Court in Loving v. Virginia? I don’t think so. Finally, with respect to the question of Justice Thomas and betrayal, Justice Thomas as a sellout, I wrote a book on racial betrayal, and in my book written years and years ago, I said, well, I don’t think it would be fair to label Justice Thomas as a sellout.
I’ve changed my mind, I’ve changed my mind. Justice Thomas trades on his blackness. He traded on his blackness during his confirmation hearings. He trades on his blackness from time to time in his opinions. He opportunistically uses his blackness as a way of validating the positions that he takes, and I would ask Professor Loury, is there any position that Justice Thomas could take that would lead him to say that Justice Thomas has betrayed black America? Maybe the answer is, well, no, there’s nothing. But if there is something that he could say or do that would lead Professor Loury to say, yeah, well that would constitute betrayal, I’d like to hear it because from what Justice Thomas has said and done, some of his votes are so awful in my view that yes, they ought to be viewed as a type of betrayal, and I don’t say this happily at all, but I think that Justice Thomas has comported himself in a way that warrants very strong condemnation. Thank you.
Ilya Shapiro: Glenn. Just because the gauntlet been thrown, would you like to reply right now just on the issue of betrayal, sellout, that aspect? I’ll leave it to Robbie for the Juris.
Glenn Loury: I’m very surprised that the author of “My Race Problem”—that’s Randall Kennedy’s essay in the Atlantic from way back in the 1980s, which I remember well—would ask me that question because the answer to it is, and I think the answer is obvious. No, no, there’s no position that a black man named Clarence Thomas could take with which I may or may not agree that in virtue of having taken that position, I would say that he betrayed black people, he’s being true to himself, and he’s black. He gets to speak for black people just as much as anybody else does. The insights to which he might arrive, which again I say I don’t necessarily have to endorse, are part of the African-American experience. He’s not obliged to read the Voting Rights Act in its latter-day judicial interpretation as Randall Kennedy would have him read it, and this device of projecting backwards and asking what he would say if he was sitting on the Warren Court in 1954. I mean I don’t even think I need to address that. That’s obviously unfair. I have no way of knowing what he would say about that. You don’t like originalism, you don’t have to like originalism. An originalist who happens to be black is no less black in virtue of being an originalist.
Ilya Shapiro: Alright, well let’s go to another originalist. I think you call yourself an originalist Robbie, but if you want to take up the question of Brown and otherwise then bring it back to Glenn’s article and your reaction to that from your perspective.
Robert George: Well first I want to thank you for the opportunity to be on, especially since I get to be on with you and with Professor Kennedy and with Professor Loury, three people that I very much like and admire—three friends. I should also add that Clarence Thomas is a friend of mine. We’ve been friends since the early 1990s, actually before he went on to the court and there’s a story there that might be relevant to our deliberations this evening. We became friends because he was somewhat controversial in conservative judicial circles even before going on to the Supreme Court of the United States when he was serving as a U.S. Court of Appeals judge because in a number of writings of his, he had expressed sympathy for the great tradition of natural law and natural rights and from the perspective of some conservatives of that time and especially some originalists, so-called natural law jurisprudence was a bad word.
Natural law jurisprudence was identified with the jurisprudence of the Warren Court that was willing freely to depart from the text of the Constitution and its logic and structure and original understanding in order to advance political goals associated with a particular liberal ideology of the time. I didn’t read Justice Thomas’s essays in the way that many of my fellow conservatives who were critical of him read those essays, but I looked for an opportunity to get to know him, and one arose when I was hosting a conference here at Princeton for judges in the summer, and I invited then-Judge Thomas up to Princeton to talk about this very issue, natural law and natural rights, and the question of the judicial interpretation of statutes, and especially the Constitution, to give him an opportunity to clarify these points which were points of division within the conservative family. And he did come, and he gave a very good paper in which he tried to explain to his fellow judges that an understanding of the American constitution as rooted in the tradition of natural law and natural rights, a recognition that the founders shaped the law, especially the law of the Constitution in light of their understanding of natural law and natural rights, did not translate into a license for judges to substitute their understandings or vision of natural law and natural rights for those of the lawmaker or constitution maker or ratifiers of the constitution.
Just a few weeks after he visited Princeton and we got to know each other, justice Marshall, justice Thurgood Marshall retired from the court and shortly after that, of course Justice Thomas was nominated and the rest, as you know, is history. So over the years we’ve had many opportunities to get together and very often the subject of our conversation returns to the tradition of natural law and natural rights, and we have opportunities to discuss that. We discuss that a great deal more than we discuss any particular cases that the Supreme Court handles or that he’s been involved in. We come from two different schools of thought within the broad tradition of natural law and natural rights. He picked up his ideas about that subject from the Straussian tradition, the followers of Leo Strauss, a couple of Strauss’s students, or I should say grand students, students of Leo Strauss’s students were very influential with Justice Thomas when they worked for him, and he was serving as head of the EEOC.
They had a kind of informal, like a graduate seminar going when he was in that role, and they were working for him. So his understanding is very much what political theorists would recognize as West Coast Straussian. I was trained in a very different tradition, the tradition of analytic philosophy. I did my doctorate in Oxford under John Ness and Joseph Raz, so we had different perspectives, but that really enriched, I think has enriched our conversations. I say has enriched because these conversations continue to go on. One of the most interesting experiences I’ve had with Justice Thomas was an informal event just getting together where we were with the late economist Walter Williams. I’m sure Glenn knows him and knows his work, and that was a conversation in which Justice Thomas didn’t actually state a position but asked the two of us questions as we debated.
It was almost as if we were before the court, although it was in a very informal private personal setting, and here was the subject. The subject was what’s wrong with slavery? What exactly is morally wrong for slavery? And of course we agreed that slavery is a violation of natural law and natural rights. Williams agreed with that. I agreed with that, but Williams’s theory was very different from mine. Williams argued that the reason that slavery is a violation of natural rights is that we have the right to our own selves, we own ourselves. I took the position that that’s not the problem with slavery. It’s not that we own ourselves in someone’s stealing us from ourselves. The problem is we’re the kind of entity, the kind of reality that can’t be owned. So I challenged Williams, who was really invoking Locke’s ideas here of self-ownership with a different theory about the basic dignity of the human person.
Our dignity does not consist in the fact that we own ourselves, we’re in a subject–object relationship with ourselves, but rather that as persons as distinct from things as this particular kind of entity we’re the kind of entity that just can’t be owned, not by the state, not by other people, not by private people, not by corporations and not by ourselves. So I was challenging the idea of self-ownership as a basis for opposition to slavery and as a basis for human dignity. What Justice Thomas did in that conversation was just ask super intelligent questions. He didn’t take position one way or another. He put hard questions, I guess as judges or want to do hard questions to Professor Williams and he put hard questions to me on the specific jurisprudential question, Ilya, that I think you wanted me to intervene on, where Professor Kennedy had raised that interesting question about what Justice Thomas would do in a case like Brown against the Board of Education.
My guess is that he would have come down on Professor Loury’s side, right? We’re just guessing here, but my guess is that he would’ve come down not in the way that Chief Justice Warren came in that case, the case of segregation. I think rather he would’ve come down the way that the first Justice Harlan, justice John Marshall Harlan came down in Plessy against Ferguson, in which he wrote a very powerful dissent, defending the idea that our constitution was colorblind, that our constitution forbids the government from recognizing casts. I think that as Michael McConnell has shown a very good, roughly speaking this term is ambiguous originalist, a very good originalist argument can be made for justice Harlan’s position. Justice Harlan was articulating that position within a very short period of time after the ratification of the 14th Amendment in 1868. I think a very good original argument could be made, as McConnell has shown, and I think Justice Thomas would probably make an argument very much like that. I don’t think he would uphold segregation.
Ilya Shapiro: Great. Glenn, let’s bring it back to you and let’s do some more textual analysis of your article, if you will, and this ties into something that Professor Kennedy said as well. You talk about, well, an earlier book that you had written in the early nineties called The Leadership Failure and the Loyalty Trap, talking about elites and especially black elites, and this ties in with this charge of Justice Thomas being disloyal or a sellout for that matter. How did these conceptions or hatred come about? There seems indeed that Justice Thomas from fairly early on became a lightning rod of opposition, maybe even more than Scalia more now than Gorsuch or Alito is contending with him after Dobbs perhaps, but still there’s just this visceral dislike of Thomas and I think that probably ties back, and I don’t want to put words in your mouth, but it resonates with me with this idea of this loyalty trap. Can you talk about that?
Glenn Loury: Yeah. The book was called One by One from the Inside Out. It was essays and reviews on race and responsibility in America of the subtitle, 1995, and the essay was called something about the “Loyalty Trap.” I don’t remember the exact title. The idea I was trying to get across was that African-Americans, and we’re not alone in this, a group that is marginalized or oppressed that’s struggling and fighting against oppression and suppression will naturally seek to elicit solidarity in the public facing comments of its prominent members so as to be most effective in the advocacy of for its interests and for African-Americans. This phenomenon has manifested itself, as I say, not only African-Americans exhibit this kind of closure, this kind of sense of insistence upon conformity to as it were the party line. So dissidence dissidents and a departure from the party line is socially disapproved of and is punished by group members by ostracism and a discrediting of the person who doesn’t follow the party line.
As Justice Thomas said in his confirmation hearing for uppity Negroes who deign to think for themselves, the punishment can be severe. That’s the kind of thing that I think is at play. And again, I want to insist that the identity of the individual, the racial identity of the individual doesn’t carry with it any necessary requirement that they think a certain way that the test should be the quality of their arguments and the evidence that they can bring to bear the expectation that because they happen to belong to a certain group, they should be spouting a certain mantra I think is not reasonable. So that’s how I’d respond. Ilya.
Ilya Shapiro: Great. And Randall, in his article, Glenn doesn’t only talk about your dislike for and what you’ve called Justice Thomas. He also describes you as a heterodox thinker and that further legitimates your status among, as he puts it, the liberal black intelligentsia. But is there something special about Justice Thomas or are you labeling all black conservatives or political figures who are on the right as sellouts? Is there something particular about Thomas?
Glenn Loury: Yeah, like me, like me? Are you labeling me a sellout?
Randall Kennedy: I think you know the answer to that. No, no, I’m not. I have publicly expressed my admiration for many of your writings, and I’m happy to do so. Now, I do think on this particular issue, however, you are, you’re inconsistent. In your article, you talk about Justice Thomas, one of your criticisms is you say, Justice Thomas feels that he is being loyal to black people. He has a feeling for his people. You talk about his affiliation and in fact you’re angry with black people for not actually embracing him because you say he’s one us. That’s part of your belief. True. Is that true? Yes, he’s one of us. Well, if he’s one of us, as soon as you use that word, us, as soon as you say that, well what it does us mean? Any group, I don’t care what the group is, any racial group, it could be a religious group, it could be the nation state.
Any group has boundaries around it. That’s what “ness” is. And I’m saying that in his case, in his case, he has gone beyond what I am willing to countenance as the boundary. I think I have a very capacious boundary. He’s gone beyond it. And just one more thing, why he’s a person with tremendous power. He’s one knight of the United States living Constitution. He’s a very powerful figure, and I will return to what I said about Brown v. Board of Education and here Robbie, I want to go to you. Justice Bork got in trouble and I think wrongly so I think he was very straightforward. People ask Justice Bork, well, listen, you’re an originalist. Where’s Brown v. Board of Education? And him being very candid, he was very candid, admirably, candid. He said, well, if you’re an originalist Brown v. Board of Education and certainly Bolling v. Sharpe, the companion case coming from the District of Columbia is a problem for originalists. If you are an originalist, you’ve got a problem with the segregation cases. And from what I gather, it seems to me Justice Thomas might very well be willing to say, if you push me on this, I’m going to go with originalism. Well, I’m willing to push him and I don’t like the political choices that he makes.
Ilya Shapiro: Well, I’ll let you go, Robbie, but let me just interject the Michael McConnell seminal article about originalism and Brown. I’ll commend that to the audience and lost my second thought, but that’s good. I’m just the moderator. Robbie, please go ahead.
Robert George: Yeah, well, something Randy that I think is very important is that we have to understand that these broad theories, these labels that we use, originalist, proceduralist, structuralist, living Constitutionalist and so forth, these are broad approaches and within any of those schools, there are significant disagreements about how cases are resolved or should be resolved, including significant disagreements about very important how very important cases like Brown against the Board of Education should be resolved. Self-proclaimed originalists are of different schools within the broad category of originalism and there are different opinions about things even like Brown against Board of Education, Earl Maltz, as somebody I’m sure at Rutgers University is on the Bork side of that question. He thinks that a sound originalism will not give you Brown against Board of Education. Professor McConnell, I myself, others think that a sound originalism will give you the result in Brown against Board of Education, but not Earl Warren’s particular approach to the question.
It’s much more likely to give you an approach like the dissent in Plessy of the first Justice Harlan. Now, the reason I think that Justice Thomas would be more likely to come down the way McConnell and I come down and not the way that Maltz and Judge Bork come down is precisely his belief in natural law and natural rights and his understanding of what the natural law basis of the rights written into the 14th Amendment are, especially the equal protection clause. I think he would see it as an anti-cast principle. That’s a principle of natural rights that the framers and ratifiers of the 14th Amendment had in their own heads and wish to embody in the Constitution. Now, that doesn’t mean that they themselves would have perfectly applied their principle. There probably would’ve been differences among the ratifiers about the application of the principle, even if they agreed on the principle itself.
But I would not jump to the conclusion that just because Judge Bork or Earl Maltz says that on their version of originalism, you don’t get Brown versus Board, that nobody else can legitimately come up with a embrace, a version of originalism that does give you the result in Brown against Board. You can test that out just by looking at Warren court opinions. Look at the opinions on which black and Douglas divided. They were both Roosevelt appointees, they were both liberals, they were both, broadly speaking, within a general way of looking at the world. There were born court justices and on many points of law, they completely agreed, but there were others on which they disagreed because people in that school of thought disagreed. Even Brennan and Marshall, they were together an awful lot of time, but sometimes they divided, although their interpretive approaches were identical.
Randall Kennedy: Can I ask you a question, Robbie? Yeah. How do you respond to this? This is a challenge I posed to you. I think that you think that Judge McConnell, I think that Steve Calabresi, I think that a number of conservative originalists are taking the position that you’re taking and saying that we are originalists and we could use our originalism and get to the result in Brown versus Board of education because you realize that so many people would be just completely repelled from originalism if the cost of originalism was count segregation, count countenance, anti miscegenation laws, and the rest. Am I off on that?
Robert George: Yeah, Randy, you are. I think very well. I’m not afraid to take an unpopular opinion. Am I afraid to take an unpopular opinion? You’re not in the academic world. Am I afraid to cause people to get very mad at me because of things that I advocate? Am I willing to live with the implications of the principles that I endorse and publicly go out there and defend them?
Randall Kennedy: You certainly are. I think this is a bridge too far, and that’s why I think that you’re taking the position you’re taking.
Robert George: I think you’re being closed-minded here. Randy, I want to open your mind here. I want to do what liberals tell me they want to do all the time. They want to open minds. I want to open your mind here. I think you’re running together originalism with legal positivism, and I think that’s a mistake. I think a sound original, at least my version of originalism and clearly Justice Thomas’s version of originalism is not associated with legal positivism, but rather with a belief in natural law and natural rights. So what you’re trying to recover are the natural law and natural rights principles that everyone agrees. I think you would agree whether you yourself agree with the natural law and natural rights school, I think you would agree that the framers and ratifiers of the original Constitution and those of the 14th Amendment were believers in natural law and natural rights and wish to embody in the text in the law those principles. Am I wrong? All right.
Ilya Shapiro: I’m going to cut that off right now and move us back from 1954 back to 2024. I’ll throw in Randy Barnett and Evan Bernick’s book on the 14th Amendment as more originalism evidence that supports Robbie. But regardless, Robbie, I’d like to go back to you on the race cases that Justice Thomas has voted on or written, be it Shelby County, be it the affirmative action cases, R.A.V. versus St. Paul and cross burning. What can you say about that jurisprudence, not what he would’ve done 70 years ago or in Plessy or whatever else but his actual race jurisprudence. Then Glenn, I want you to respond as the only non-lawyer here and what you have to say from your perspective on this discussion.
Robert George: Here. I’m probably biased by my friendship with Justice Thomas and just by conversations that we’ve had, I suspect that he doesn’t ask himself the question, how should I as a black man who happens to be a Supreme Court justice rule on this case or what will advance the cause of quote my people or even what will advance the cause of American democracy? I think what he’s interested in as a justice as a judge is what does the Constitution require me to do? What does the Constitution mean? If I look at the text of the Constitution, if I look at its logical presuppositions of the particular provision, the logical presuppositions are logical entailments. If I look at the structure of the Constitution, try to make sense of its provisions. If I look at the historical understanding, if I try to understand the purposes that the constitution makers and ratifiers had in mind that will shed light on how this case should be resolved, and that’s what I should look at, I shouldn’t look at it through a racial lens. I think Justice Thomas, I might be the outlier here, but knowing him, I think he would resist the idea that I should look at this as a black man. Now, you might say he’s wrong to that because as a black man given the history, he ought to be looking at these matters as a black man. I just don’t think he sees that as legitimate and it’s not what he does.
Ilya Shapiro: Glenn, what do you think about this law talk?
Glenn Loury: Well, I want to come back to something that Randall said, which was challenging. He says, I’m inconsistent. He says, I want Thomas to be black and I want him to be recognized as a great African-American. I want black youngsters to look up to him. I want schools named after him. I want people to name their children after him. I exaggerate, but you see what I mean? And yet I want him to have the freedom to think for himself and to come to the conclusions that he comes to regardless of whether or not that’s popular with black people. And I don’t want him to be excommunicated from the race in virtue of the fact that he thinks for himself and takes heterodox positions. And then Robbie says, well, yes, but Justice Thomas and constitutional interpretation as an originalist and as a believer in natural law reads the Constitution as a jurist without reference to his racial identity.
And I am inclined to think that that’s also correct, but I think that sometimes both things can be going on. That is to say he can be both trying to understand what he ought to do with the great power that he has as a jurist, but also asking himself what is in this fine country given where African-Americans find ourselves imperative for us to do for our future? I think you see that in his treatment of the affirmative action issue where he both, and I’m not a lawyer, but I did read the opinions of Justice Robertson, justice Thomas in the recent Harvard and UNC affirmative action cases. He’s both trying to give an honest reading of what he thinks the 14th Amendment requires, but he’s also finding a way of expressing ideas about the dignity of African-Americans that he thinks is challenged and compromised through racial preferences. So I think both of those things can be going on at the same time.
Randall Kennedy: I agree with Glenn’s last point. His description I think is true. I think that both things are true, and of course life is complicated. Our identities are complicated. I would not want Justice Thomas to have, or any jurist frankly, to have in their mind as a lone idea, is this good for black people? Because I mean, after all, you could come to the conclusion that something is good for black people, but bad for everybody, bad for the rest of the world. Would I want that? No, I wouldn’t want that. So I think that there are tensions within Justice Thomas, frankly, there are tensions within all of us with respect to does Justice Thomas tap into his blackness and actually show it from time to time? Yes, he does. I bet there’s no justice in the history of the Supreme Court who’s made reference to Frederick Douglass, for instance, more than Justice Thomas, and not just Frederick Douglass.
I think he’s made reference to Malcolm X. He clearly, his history, his identity, his particular struggles with colorism and other aspects of the black experience are clearly on his mind and he shows it fine. I don’t object to that. I’m simply saying after you do that, however, and if you do that and he does do that, well then people assessing you, it seems to me are within their rights to ask at least as part of their assessment, what does this mean for black America? That shouldn’t be the only thing, but it seems to me that’s one thing, and I will say, again, I want to hear about, or let me put it differently. The case that sticks in my throat the most is not the affirmative action case. Not the affirmative action case. I’m a defender of affirmative action have been for a long time, but I think that there are arguments on the other side. I think that there are actually strong arguments on the other side. I do not see that in the voting rights case and in the voting rights case. I think that a hundred years from now, people will look back on that case and put that in the same category as some of the worst cases in the history of the Supreme Court.
Robert George: Let me try, I’m trying to think myself sympathetically into Randy’s view here, and I do think there is a case where Justice Thomas’s race figured importantly in an important contribution that he made, and that is the R.A.V. against St. Paul case. And in that case, I think,
Randall Kennedy: Or the follow on, Virginia versus Black, right?
Robert George: Yeah, yeah. I mean I think that Justice Thomas’s own experience as a black person with racism, his understanding of history of what that actually meant, just how horrific it actually was, helped him to understand probably better than somebody who wasn’t black, didn’t have that experience, didn’t have that family history, hadn’t heard all those stories, an understanding of what it really means to have a flag, a cross burned on your lawn or something like that. I think that mattered there. So I’m here trying to think myself, as I say, sympathetically into Randy’s view. I could see Randy making the argument, well, that same sensibility, that same sensibility that enabled him to make an important contribution, I think in the R.A.V case. And the other should have been in his mind in Shelby County and maybe had he looked at that more sympathetically from the perspective of the evils that the law was supposed to be overcoming, trying to overcome the Voting Rights Act as trying to overcome that should have made a difference. Is that fair, Randy?
Glenn Loury: Excuse me, Robbie, you think he wrongly decided the voting rights case?
Robert George: No, no. I’m not saying that. I’m trying to think myself into Randy’s position here because he, he’s saying sometimes surely Justice Thomas’s race should matter, and we know from his invocations of Frederick Douglas and even Malcolm X that sometimes race does matter. So I’m thinking in my head, Glenn, well, yeah, I can think of a case where it really did and where it made a positive contribution. That’s R.A.V., and if I were arguing Randy’s case, I’d say that same sensibility that we saw in R.A.V should have been there, and I think Randy would think it would make a difference if it were there in the holder in Shelby County.
Ilya Shapiro: That’s very useful.
I would throw in as well, McDonald versus Chicago and his invocation of privileges or immunities, the history of reconstruction and the dispossession of firearms from black people and other aspects there as an interpretive method. That’s I think both more originalist and different from what the plurality was doing there. Let me turn. We’ve actually, the audience is submitting questions. You’re still welcome to submit more questions. You press that button on the YouTube channel. We’re sort of hitting most of the ones that are making into the chat as we talk, which is understandable. I think these are the most important issues that come through in Glenn’s article. But one thing, Glenn, I want to go back to you some more of the personal stuff. Your experience and Justice Thomas’s experience that he detailed in his autobiography, my grandfather’s son of kind of as a black man, going through changing America and your own changing personal views and going left, going right, a radicalism period, a reevaluation. Did you write this, or are you thinking about Justice Thomas because of that parallel to your personal life or talk to us about that aspect of your work.
Glenn Loury: Well, yeah, the loneliness of the black conservative, the enigma of the black conservative and all of that. And the fact that I blinked, this is my autobiographical observation here. I kind of tacked left and in the nineties and the aughts, there was a period where I was talking to myself as a man of the left where I had revised some of my conservative views more in keeping with what I call the Negro Kochno in my memoir. And I did it in part to regain standing with my African-American peers in the academy and in the intelligence and in the media in my own family and whatnot. Too much about me here. Justice Thomas hasn’t done that. This is part of what I meant to say, that his convictions, his willingness to stick to his convictions and to say the things that he thinks are true, even when they cut against the grain amongst his co-racialists is extremely admirable. And part of my admiration for him derives from my personal experience with the difficulty of maintaining one’s intellectual integrity under the pressures of the accusations of racial disloyalty.
Robert George: Joe Biden got into a lot of trouble and had to walk back his statement that to black folk that if you’re not voting for me, you ain’t black. Remember that? Yeah, he had to walk it back, which I think is good. It shows you something I think that shows you some progress, but the fact that he would say it could say it, I think also tells you something important about what the point Glenn was just making there. If you’re a member of a particular group, as Randy said at the beginning, there’s this groupness thing, right? There’s this sort of set of ideas that are acceptable and those that are beyond the pale and put you outside the group. Well, I think for a long time and through most of Clarence Thomas’s career, you were considered a heretic. If you were black and conservative, you could be a lot of other things, but you couldn’t be a conservative.
Randall Kennedy: No. There’s a spectrum of conservatives. In fact, Glenn makes a very good point. Glenn, in his article sort of sticks it to me and saying, well, Kennedy, you must know that there are a substantial number of black people who have ideas that are very similar to Clarence Thomas’s, and that is absolutely true. That’s true. I disagree with a lot of those ideas, but just at a sociological level, many of his ideas are embraced by other black people. Again, if we’re talking about blacks and conservatism, there are black conservatives, just like for a long time there’ve been black Republicans. Justice Thomas I think has made himself persona non grata in much of the black community because I think that he has said things and done things that a lot of black people rightly view with contempt, not just disagreement within black America. You go to a black American dinner or party and people are disagreeing all the time, but there are some positions taken which raise antenna and make people think, you really are not with us at all. And there I go back again to Shelby County, above all, not the affirmative action case. I think that’s a lot more people can deal with that. Shelby County, and I’ll mention some other cases, there have been cases, I forget the name of the case, Ilya, you’ll probably remember it. There’ve been a couple of jury discrimination cases where Justice Thomas has been the lone justice. There was one in particular coming from the Deep South, it seemed me, black—
Ilya Shapiro: Flowers I think from Mississippi.
Randall Kennedy: The one. It seemed to me obvious, what are you talking about? It was almost race so that the facts speak for themselves. And Justice Thomas alone said, no, frankly, it had me scratching my head. And it’s that sort of thing that I think prompts people to think that I’m not going to trust this man’s judgment. I’m not going to give him the benefit of the doubt. And I think that’s where he is with a lot of black America.
Ilya Shapiro: Alright, let’s change gears a little bit. I think that point is clear and laid out on the table from various perspectives. A question came through, and I guess this is mostly for Robbie, please explain the difference between Justice Thomas’s and Scalia’s and Alito’s jurisprudence because there’s a lot of, obviously, thankfully, non-lawyers watching this. So just so we have some parsimonious analysis here.
Robert George: Okay, sure. So Justice Scalia, like Justice Thomas is a self-described originalist. So he believes that where a provision of the Constitution is not clear in its meaning or its applicability of a particular set of facts on its face, we try to understand what it means and therefore how it should be applied by reference to the original public, meaning that is the meaning that it had for the people whose act of ratification turned it from being just somebody’s idea, somebody’s bright idea into law. Justice Alito by contrast, does not label himself. He doesn’t label himself an originalist, doesn’t label himself something else. He has expressed the view that he thinks that all of these labels are misleading and that the art of judging cannot be reduced to this approach or that approach. Originalism, procedural, living, constitutional or what have you. I think Randy’s colleague up at Harvard, Adrian Vermeule at a recent conference on Justice Alito’s thought made a very good point when he said that if you look at Justice Alito’s thought, what seems to be doing the work in a lot of cases where the meaning of a provision of the Constitution is not clear on its face is his sense of the purpose of the provision that he’s constantly going back to the purpose.
And Randy, you weren’t at the conference, but you’ll be interested I think to hear that he thought, Adrian thought that the real powerful influence on Justice Alito in this respect was the late Lon L. Fuller who taught at your law school at Harvard, wrote that famous book, The Morality of Law, which was so focused on understanding law in light of its purposes that his great critic, the Oxford legal philosopher, H.L.A. Hart said that when Fuller’s passion for purpose would cool, it would finally leave a lot of light on the subject and less heat. And I think that’s probably right. So this results in some differences of opinion when it comes to actual cases, although in most cases where the court divides along roughly speaking ideological lines, although the term ideological there is unfortunate. But anyway, it’s what we use very often when there’s a division along those lines, you’re going to find Justice Alito with Justice Thomas, but they have also disagreed on some important things.
Justice Alito has been a lone dissenter in some areas, including in free speech law. He and Justice Thomas are not on the same page. In some cases they’re thinking, for example, justice Alito’s lone dissent in the Westboro Baptist Church case, Snyder v. Phelps. Justice Thomas goes along with the rest of the majority in having a very broad view of the First Amendment there. One that would protect even the activities of the Westboro Baptist Church with respect to a funeral that they were protesting of a military veteran and Justice Alito there would draw the line and say no. So there are some differences there. And Alito, unlike Thomas doesn’t describe himself as an originalist in that way, you would see Justice Thomas is closer probably to Justice Scalia than to Justice Alito.
Ilya Shapiro: I’m going to a couple of questions that we’ve gotten. It’s kind of interesting public figures. Can we look back 70 years in the past? Maybe look in the future where public figures can be perceived differently in hindsight, can any of you foresee sometime in the future, whether it’s 70 years or 25 or whatever in which Justice Thomas enjoys broad popularity. I mean he is very popular among conservatives, but can that grow on a personal and or professional level? And what would it take to bring about that renaissance, not just in the black community, but kind of more broadly in America? There is a documentary about him Created Equal: Clarence Thomas in his own words that was produced a few years ago in a companion book that just came out last year. But look to the future maybe, Glenn, what do you think?
Glenn Loury: I think the passage of time and the cooling of passions, justice Thomas will not serve forever. He will eventually step down or leave the court. He will have, when that happens, served a very long time, perhaps longer than anyone has served at the court, he will have left a body of work which will engender disputation to be sure, but which will nevertheless be formidable. He will have a legacy of clerks and those whom he’s influenced in the law who will continue to exert influence. I think that the passage of time and the massive footprint of his jurisprudential contribution bode well for him in the historian’s eye view 50 or 75 years from now.
Ilya Shapiro: Randy, what do you think?
Randall Kennedy: I think that history is going to be very tough on Justice Thomas because, and not just him alone, I think that the history is going to be very tough on the Supreme Court that we have had over the past several decades. I think the Supreme Court is part of the problem that the American polity faces today. People from a wide range of positions on the American political spectrum realize that we have just tremendous problems in America and we do. And I think that the Supreme Court of the United States, I mean after all, it’s one of the three great pillars of the federal government. It is part of that and has probably helped to bring this problem to bear, these problems to bear. And so I think that history is going to be tough on him along with his colleagues
Ilya Shapiro: In terms of longevity, just so people know, he is currently the 11th-longest serving justice 90 days away from entering the top 10, two years away from entering the top five and looks like four and a half years from being number one, which is feasible. Certainly, he’s young enough.
Robert George: Can I comment just on that question that you put to Glenn and Randy? I don’t think you’re going to have a substantial change in the evaluation of Justice Thomas either by the conservatives or the liberals, while he is still thought of as a black or the black justice. I think if the time comes when we get past thinking of him that way and we start looking at his jurisprudence as a whole, especially when we start looking at Justice Thomas as a dissenting judge, and most especially when we look at Judge Thomas or Justice Thomas when it comes to the Commerce clause and the theory of the commerce power and the limits on the federal government’s authority under the commerce clause and the establishment clause of the First Amendment, the clause that says Congress shall make no law respecting and establishment of religion. I think if there comes a day when we no longer are focused on the race question, but on Justice Thomas as a jurist and his jurisprudence, I think he will rise in stature as a result of pioneering work. He’s done as a dissenter in the commerce clause area, in the establishment clause area,
Ilya Shapiro: And who knows how long he serves. Maybe he’s known as the dissenter, but now he’s more and more years in the majority and indeed as the senior associate justice, which means, for example, even a case like Dobbs, he didn’t write it, Alito wrote that, but he assigned the opinion to Alito.
Robert George: Now, of course, what I mean is, I mean this will be long after he’s gone,
Ilya Shapiro: Right? Right,
Robert George: Of course. So I think there will be some lengthy period of time, even after Justice Thomas has stopped serving when everything is going to be looked at through the lens of race. He’s just going to be assessed on that basis. But a time I think will come and I certainly hope will come when that won’t be the main thing we think about. It won’t be as central. And then we’re going to be looking at other aspects of Justice Thomas’s jurisprudence that we haven’t even gotten around to talking about today because naturally we’ve been so focused on the racial aspect of things.
Ilya Shapiro: We’ve hit the bottom of the hour. We can go for another few minutes. I want to hit one more question then give each of you a chance to say a final word. The subtitle of Glenn’s article is “To speak as a black man at odds with the consensus of other blacks can be burdensome—and liberating.” While leaving aside the question of whether the particular rulings that we’ve discussed or that Kennedy has taken issue with, whether they in fact hinder black advancement, is the expectation of racial solidarity on the part of a judge consistent with the expectation of judicial impartiality? Who wants to take that?
Randall Kennedy: I think that’s a very good question. I think that’s a very good question. And here, I guess maybe I’m struggling with it. I think that the issue of racial solidarity should not get priority. I think it’s a problem if someone says I’m black first. I mean, if you are a justice of the Supreme Court, if you’re a judge, if you’re an elected representative, obviously we live in a multiracial country, a multiracial society. And if you are a Justice, you’re supposed to be a Justice for all, and I think you should be, and that should be the primary thing. Now, having said that, of course we all have multiple identities, so it’s probably impossible to iron out and have just one uniform identity. But if one had to prioritize, I would put the at the top, some allegiance, some desire for some sort of transcendent identity above subordinate particularities.
Ilya Shapiro: Here. Here.
Robert George: Amen.
Ilya Shapiro: Alright, let’s have some closing thoughts. We’ll go Robbie, then Randy, then back to Glenn to conclude whatever you want to leave us with.
Robert George: Yeah, I’d like to close by underscoring what Randy just said and emphasizing what a problem it is for those of us in the academic world. As much as for those in public life like Justice Thomas, whether in the courts or in legislative politics or wherever they are, when you’re a member of a group, when your background circumstances or your beliefs make you a member of a group. It might be a political group, it might be a religious group, it might be an ideological camp. Your membership in that community depends on your orthodoxy to some extent. And that puts powerful pressure on all of us to conform. And sometimes if you’re a free person, if you’re a free thinker, if you think for yourself, there’re going to be sometimes, I don’t care what group you belong to, there’re going to be sometimes when you’re going to be out of step.
And if you’re not, there’s something wrong with you. Now the question is, what are you going to do when you’re out of step? You’re going to just go along, you’re just going to fall into place, or are you going to stand up? Are you going to take the slings and arrows that come? I’ll tell you a story that’s not about race. Randy, your colleague, Jeannie. So Gersen and I were talking once, Jeannie teaches criminal law classes as well as constitutional law and some other subjects. And she was telling me about some real third-rail issues in criminal law that are hard for any criminal law professor to address because you can end up stepping on a mine and the class is in an uproar against you because you’ve said something politically incorrect or unbroken, all of a sudden you’re a terrible person and the mob’s out to get you.
And there are attacks on Twitter. Jeanie was talking about that being a hazard of teaching criminal law. And the particular subject she was talking about didn’t seem like such a problem to me. And I just said, well, Jeanie, if it were me, I’d have no hesitation at all about addressing that subject and putting the competing points of view online. And she said something to me very interesting. She said, well, you could do that and get away with it. Adrian Vermeule could do that. Jack Goldsmith, these are conservative professors. You guys could do that and get away with it because you’re conservatives, so you’re not expected to conform that. It would be just expected that you would be out of step with the orthodoxy. She said, for me, that actually has consequences because I’m in the liberal camp. Well, the same thing happens on the conservative side, by the way.
I mean, I can tell you about experiences with that where you get out of step with the orthodoxy of the group and suddenly they’re after you and you’re the great Satan and so forth. So I think at the end of the day, no matter what we do, whether we’re academics, whether we’re business people, whether we’re in public life, whether we’re judges, there comes a time when you’re just going to have to stand up for what you believe in, speak your mind, speak for yourself, think for yourself. And then just as I say, take the slings and arrows that come.
Randall Kennedy: I’ve thoroughly enjoyed participating in this discussion. There are a couple of questions in the chat that I’ve noted, and I’ve got to think about, and I really do salute my colleagues that were part of this session. I’ve said what I believe, and I’ve also gotten some challenges that I’ll have to noodle over. And it seems to me that that’s precisely what’s good about a session like this. So I’d like to thank everyone.
Glenn Loury: Thanks to you Randall, and thanks Robbie. Thanks, Ilya. I’m honored by the fact that this assemblage has been engendered by my humble contribution. I just want to note in closing that there was a lot of carping about Justice Thomas not being up to the job when he first rose to the bench. He was an affirmative action appointee. He didn’t speak during oral arguments. He was following Scalia and didn’t think for himself. And I just like to close here by saying that whatever everyone thinks about his opinion in Shelby or other cases, the question of his competency and his fitness to serve should have been laid to rest by the enormity of the contribution that he has made, and he’s not finished yet.
Ilya Shapiro: Thanks very much. Thanks to our audience, this has been recorded. You can watch later or send it to your friends. You can read more of Manhattan Institute’s work at Manhattan-institute.org, as well as City Journal, one of my favorite publications even before I joined MI a year and a half ago. Just a top-notch magazine and web presence at city-journal.org. And with that, thank you so much to Professors Loury, Kennedy, and George, and we are adjourned.
Brian Anderson: Thanks for joining us for the weekly 10 Blocks podcast featuring urban policy and cultural commentary with City Journal editors, contributors, and special guests.
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