Clarence Thomas, Federal Judges, Federalist Society, Free Speech, Law Schools, listserv, SCOTUS, Supreme Court

Clarence Thomas Is Coming To Town

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Elie here. Imagine Santa Claus stopping by your house — except this time Saint Nick is a mute, who stuffs your stocking with personal responsibility and brings you wooden toys, because those were the only ones available when his legend was born.

Well, joking aside, Justice Clarence Thomas will be stopping by Yale Law School on December 14th. And since there won’t be a case in front of him, he’ll actually be talking.

But not to everybody. Sources tell us — and Yale Dean Robert Post confirmed, in a school-wide email — that Justice Thomas will be speaking to the Yale Federalist Society and to the Black Law Students Association, as well as attending a class and a private reception. He won’t be making any general public appearance.

Setting aside commencement, it’s fairly typical for guest speakers (including Supreme Court justices) to speak to specific student groups and not the law school at large. If Justice Elena Kagan went to Yale, she’d likely speak to the American Constitution Society and the Socratic Hard-Ass Faculty Coven.

Some students claim, however, that the Yale administration has contacted several student organizations and asked them not to protest during Thomas’s visit. We don’t know if that’s true, and a message from Dean Post (reprinted below) does not directly mention anything about student protests. But the mere rumor of Yale trying to quash protests, circulated on “The Wall” (the YLS list-serv), has made some students angry.

Should they be? Strap yourselves in for an ATL Debate….

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ELIE MYSTAL

If Clarence Thomas doesn’t want to hear from any protesters, he can keep himself locked away at One First Street. When you are one of the most powerful people in America, you are fair game for protesters wherever you go, especially if you stop by one of the country’s leading law schools.

Now, I’m not really a fan of SCOTUS justices speaking to student groups. Even though everybody knows they are not, Supreme Court justices are supposed to maintain at least the illusion of impartiality. But Thomas doesn’t look very impartial when he’s chumming it up with the Fed Soc — just as Breyer wouldn’t look impartial if he was hanging out at an ACLU barbecue. We don’t allow these people to openly support political candidates, but we’re cool with them hanging out with interest groups with a clear political agenda? I’m not.

Nor am I wild about SCOTUS justices speaking to affinity groups. How is that supposed to work, really? Thomas speaks to BLSA, Sotomayor speaks to the wise Latino law students, and Roberts speaks to whom, Privileged White Law Givers of the Universe? I get that a minority sitting on the Supreme Court can be an inspiration for other minorities, but I’d also like to think that even Justice Scalia could come up with something useful to impart to, say, black law students. But he doesn’t speak in front that group because he doesn’t have to? Because he’s not invited? Because he’s white?

Because that’s not the way things are done?

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I think if a justice is going to speak to law students, he or she should try to speak to all the law students. I think he or she should try to elucidate some fundamental truths about the law that are applicable to all races and creeds and political parties. I think it should be less about the conservative justices giving their conservative view of constitutional interpretation, the liberals giving their competing view of interpretation, and everybody trying to make the wittiest slam of the other side’s logical abilities.

Mommy and Daddy should fight after the kids go to bed.

But if you are going to roll up into a law school and spout your controversial viewpoint on judicial interpretation, if you really can’t find something to say that will be of consequence and import to all those who want to learn more about the law, then yes, students have a right to protest. Students can and should protest the hell out of whatever thinly veiled support for or attack on abortion you came to their campus to sell. They get to rail against your view on government power that suggests you’ve pre-decided a case before you’ve even read a brief. If all you are doing is voicing your opinion, then the students should get to voice theirs.

But I wish it didn’t have to be that way. I have a dream that one day we judge a Supreme Court justice based on the content of his character instead of the president who appointed him.

(Although, I suppose, even by that standard there would be students eager to protest the coming of Clarence Thomas.)

DAVID LAT

Personally I think this is much ado about nothing. As Elie notes, guest speakers address specific student groups at law schools all the time; it’s no big deal. If Justice Thomas wants to address particular groups with whom he feels a strong personal connection — and yes, BLSA and Fed Soc are two obvious candidates — that’s his prerogative.

It’s also worth noting that if Justice Thomas were forced (a ridiculous notion) to address the entire law school, he probably wouldn’t go to New Haven in the first place (despite the great pizza). Sure, he likes to drive around in his RV over the summer — but during the Term, he’s not in the habit of running around the country giving stump speeches or holding town halls (like he would if he were running for president, as Kashmir Hill and I have urged him to do).

Rather, Justice Thomas is coming to YLS in response to specific invitations from specific groups. As Dean Post notes in his email, “Justice Thomas has accepted long-standing invitations from members of the Law School community” — to wit, “outreach that members of our Federalist Society and Black Law Students’ Association student groups have made to Justice Thomas over several years.” (My best guess, based on past speeches by Justice Thomas to similar groups, is that he won’t be advocating any particular policy platform in these appearances; he’ll probably speak about his own personal journey from Pin Point, Georgia, to One First Street.)

So what’s left of this “controversy,” if it could be called that? A few stray rumors, circulated on The Wall, about “the YLS Administration contact[ing] multiple student organizations to encourage them not to protest his visit.”

Okay, let’s stop right there. A few observations:

1. We have no proof of these alleged messages from the administration (as Elie notes), nor do we have any information about the form that any such messages took.

2. All we have are rumors. There’s nothing wrong with rumors — we certainly traffic in them here at Above the Law, and they are fun and interesting to read — but sometimes they turn out not to be true. (See, e.g., yesterday’s “poop tattoo” story.)

3. Let’s assume the truth of the rumors. Note that the word on the street is that the law school administration “encourage[d]” student groups not to protest Justice Thomas. Dean Post didn’t “forbid” student groups from protesting, nor did he say they’d lose administration funding if they protested, nor did he threaten to sic the Tiger Mother — or, more frightening, Professor John Langbein (my personal pick for scariest YLS prof) — on any protesters.

The administration, according to the Wall gossip, merely “encouraged” no protests — which is certainly their right. Students have the free-speech right to protest whomever they like, but law school administrators also have the right to explain why such protests might be a bad idea.

In this case, they would be a bad idea. It’s not clear what purpose protests would serve; Justice Thomas isn’t going to start voting or writing differently on the Court because of some unruly law students. (If anything, the contrarian jurist might tack even farther to the right.) It’s not even clear what the basis for the protests would be. Ancient allegations by Anita Hill? Justice Thomas’s jurisprudence, which happens to be conservative? Hardly compelling stuff.

This might explain why Justice Thomas is welcomed, not protested, when he visits other law schools. One would expect his alma mater to treat him at least as well as similarly situated institutions.

It’s also important to view this controversy against the backdrop of the strained relationship between Justice Clarence Thomas and YLS. This visit has been a long time in the making precisely because of these historically chilly relations, as I explained back in January 2007:

[Then-Dean Harold] Koh [mentioned at an alumni dinner that he] recently met with Justice Clarence Thomas, who said that he would VISIT YALE LAW SCHOOL, sometime in the next few years!!!

…. For those you who aren’t familiar with the history of CT and YLS, please understand: this is HUGE NEWS.

Why? For years, Justice Thomas hasn’t had warm and fuzzy feelings for Yale Law School — ever since numerous alums and faculty members opposed his Supreme Court nomination. Justice Thomas viewed this opposition as a betrayal, and he has held it against the Law School. He declined to have his portrait hung at the law school, as is customary for YLS grads who become SCOTUS justices. Furthermore, according to a profile of Justice Thomas from Esquire magazine, he has a sign in his chambers that reads: “SAVE AMERICA, BOMB YALE LAW SCHOOL.”

…. So the news that Justice Thomas will visit Yale Law School — something which, as far as we know, he has never done since being confirmed to the Supreme Court — is very, very big. We have no idea what prompted his change of heart (assuming, of course, that all the particulars of Dean Koh’s account are accurate). But we’re glad to learn of it, just the same.

So here we are, almost five years later, and Justice Thomas is about to visit YLS. This visit has been years in the making, involving diplomatic efforts that would impress officials at Dean Koh’s new home. Overtures have been made to Justice Thomas — by the YLS administration, the Yale Federalist Society, the Yale Black Law Students Association — over a long, long time. Finally, they have borne fruit.

And now a bunch of neo-hippie types want to use Justice Thomas’s visit as an occasion for some kind of “Occupy 127 Wall Street” movement? Sorry, kids, but get over yourselves. You missed the 1960s, and there’s no going back.

Members of the Yale Law School faculty and administration, as well as your very own classmates, have worked hard to achieve a détente in relations with a sitting Supreme Court justice — a distinguished, important, and influential jurist, as even his detractors acknowledge (see, e.g., this very interesting piece by the New Yorker’s Jeffrey Toobin). And you want to take all their hard work and, in essence, flush it down the drain.

To quote a certain high-strung law student, “HAVE YOU NO SHAME? I HONESTLY HOPE THAT YOU ARE CAPTURED BY TERRORISTS AND THAT THE RANSOM VIDEO IS LOST IN THE MAIL! AND NOBODY EVER FINDS YOU! …. I HOPE YOUR FAMILY’S GAS GETS SHUT OFF!!1!!! …. SHAME!!!!!!!! SHAME!!!!!!! LOUD NOISES!!!!!!!”

But hey, that’s just me. Readers, what do you think? Feel free to express yourselves, in the comments.

(In addition, if you feel like it, you can check out the email messages from (1) Dean Post and (2) various posters to “The Wall,” the Yale Law School student list-serv. We’ve posted them on the subsequent pages. But to those of you who are allergic to clicking through — yes, we’ve noted your complaints — you can just stop reading right here, since this material is merely supplemental to the core article. Thanks.)

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