'The White Man's Burden': A Frank And Funny Interview With Justice Clarence Thomas

Justice Clarence Thomas opened up in a candid, wide-ranging interview with Chief Judge Carl Stewart of the Fifth Circuit.

Justice Clarence Thomas

Justice Clarence Thomas

I thoroughly enjoyed attending and speaking at the Fifth Circuit Judicial Conference in Houston last week. I especially appreciated the opportunity to sit in on a frank and surprisingly funny conversation interview by Chief Judge Carl Stewart of Justice Clarence Thomas, who has been temporarily appointed to serve as the Fifth Circuit’s circuit justice (after longtime circuit justice Antonin Scalia passed away).

Justice Thomas and Chief Judge Stewart share a fair amount in common. They’re both African-American men in their late 60s — Justice Thomas is 67, Chief Judge Stewart is 66 — who were born in the segregated South. They then rose from humble beginnings to the highest precincts of the legal profession, where they’re remained for many years. Justice Thomas joined the U.S. Supreme Court in 1990, and Chief Judge Stewart joined the Fifth Circuit in 1994.

Given their similar backgrounds, it came as no surprise when Chief Judge Stewart opened the discussion by asking Justice Thomas about his (wonderful) memoir, My Grandfather’s Son (affiliate link). He asked Justice Thomas whether, looking back on the book now, there’s anything he would have written differently.

Justice Thomas’s response: “Knowing what I know now, I might not have written it.” Writing a memoir is very difficult, he said, and it requires you to relive things you’d rather not relive. (He didn’t mention it specifically, but his comment sounded like a reference to his bruising confirmation battle — the subject of the recent HBO movie Confirmation, which is probably not sitting in his TiVo right now.)

Judge Stewart then asked Justice Thomas to describe what it was like to join the Supreme Court. Again making a comment that could be read as a veiled reference to his confirmation process, Justice Thomas said, “I was tired when I joined the Court. I was pretty beat-up; I wanted to rest. You mentioned Judge Garza earlier — I was hoping it would be him.”

(Judge Emilio M. Garza, who retired from the Fifth Circuit last year, was interviewed for the SCOTUS vacancy that ultimately went to Justice Thomas. Judge Garza was in attendance at the conference as well.)

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When Justice Thomas joined the Court in 1991, it had a much larger docket, around 120 cases each Term (compared to the 80 or so that the Court hears nowadays). He didn’t have much time to get up to speed — he was sworn in on Wednesday, October 23, had his investiture on Friday, November 1, and was on the bench to hear cases on Monday, November 4.

“I quickly hired four law clerks,” Justice Thomas recalled. “I had no time to think or get mentally prepared. It was just a treadmill, like something out of Lucille Ball. By the end of my first Term, I was very ill.”

“It’s a nice place,” he said of the Court, “and people say to you, in a very nice way, ‘If you need help, give me a call.’ But they don’t really mean it. It’s sort of like, ‘If you need help, you shouldn’t be here.’ We’re from the South — if I’m polite enough to offer it to you, you should be polite enough not to take me up on it!”

(According to his tweet, Bryan A. Garner heard “But they don’t really need it.” I conferred with a few other attendees, though, and we all heard “mean it” — which also makes more sense in light of the justice’s “polite enough not to take me up on it” comment a few seconds later.)

The mention of the Supreme Court’s diminished caseload let Chief Judge Stewart to ask Justice Thomas whether he’d like to see SCOTUS decide more cases. Justice Thomas quipped, “I’d like it to go up to 120 to keep my colleagues busy!”

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On a more serious note, Justice Thomas said, “I think the courts of appeals are solving a lot of the problems.” Big new statutes, such as the Bankruptcy Code, ERISA, and AEDPA, generated many Court-worthy questions of statutory interpretation. But today, according to the justice, “There aren’t many big pieces of legislation that need sorting out. There’s a lot of activity in the regulatory space, where we do our Chevron deference thing…. I don’t see much opening for the caseload to go up, even though personally I’d like to see it go up to over 100.”

At this point, perhaps inspired by talk of the Court’s evolution over time, Justice Thomas took a detour to reflect on the recent death of his longtime colleague, Justice Antonin Scalia.

“Justice Scalia’s passing was a huge loss for me,” Justice Thomas said. “I didn’t do a lot of the social things he did. I didn’t kill unarmed animals [pause to let audience laughter subside], I didn’t do the opera thing. I like opera, but I don’t want to hang out with the people who like the opera. He and I didn’t see each other that much, even though our chambers were next door.”

But when it came to deciding cases, “we seemed to wind up in the same place. We were instinctively close, and he was someone I’d always trust even when we’d disagree. I trusted the quality of his work. I trusted him both professionally and personally. I was with him for almost a quarter of a century. You like your new colleagues, but Justice Scalia and I were always two peas in a pod.”

“He took some blame for my decisions because he was supposed to be my boss. I told him that was the white man’s burden,” said Justice Thomas — to more laughter from the audience.

If Justice Thomas isn’t into hunting or going to the opera, how does he like to spend his free time? He mentioned attending football games and traveling around the country with his wife Virginia in their motor home

“I’m from regular stock,” Justice Thomas told Chief Judge Stewart. “You and I, we grew up in same era. I spent the bulk of my childhood in counties where there was a fear of moving around in the era of segregation. Now I like moving around.”

“I like music. I read a lot. I like to visit with friends. I do like football, I’m a big Nebraska fan. I’m doing a tour of the SEC to make sure those stadiums are safe,” he joked.

Mentioning the Boy Scout troop that opened the conference proceedings that day, Justice Thomas concluded his remarks by stressing the need to mentor and help others, just as he was mentored and helped by so many people during his own journey to the Supreme Court.

“There’s an endless number of kids who can use help,” Justice Thomas said. “Don’t we have a special obligation to help them? That’s what my grandparents did for me.”

Earlier: Bryan Garner’s 3 Neglected Keys To Effective Advocacy


David Lat is the founder and managing editor of Above the Law and the author of Supreme Ambitions: A Novel. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com.