tv Heritage Symposium Discussion on Federalism and Separation of Powers CSPAN November 28, 2021 5:02pm-6:25pm EST
>> welcome to the heritage foundation. on the foundation and the scalia center, we are delighted that you are here. please wear a mask and silence your cell phones ahead of time. we are so happy that you are here to help us celebrate the occasion of the 30th anniversary of clarence thomas's confirmation on the supreme court. we have an outstanding series of panels exploring justice thomas's impact. the moderator of our first panel is john yu, a professor at the
university of california at berkeley law school. he is a political author and commentator. he served at the justice department during the bush administration and clerked for justice thomas. i turn it over to you. for justice thomas. i turn it over to you. john: i would like to thank john malcolm for putting me on the schedule at 8:30 in the morning after i flew from california. it is 5:30 my time. this is the revenge of the civil war and rafters. congratulations for your new president, just announced. you might have heard this nice jazz music when we were coming
in. i assume it is all going to be changed to banjos and texas music. i want to thank all the judges for participating. i was expecting that it would be extremely difficult, not having been a judge myself, i expected them to make demands, yellow, scream -- yell, scream, but they were accommodating and cooperative. this is not what i thought judges were like an all. this is a statement about larry. you all know who they are. i will introduce them quickly. i will ask them to share any story or encounter it with a justice that they had over their years on a bench. all the way on the far left,
judge tom hartman from the third circuit, my home state of pennsylvania. next to him, judge naomi rao from the d.c. circuit judge. judge jones from the fifth circuit, and judge phil prior from the 11th circuit. do you have any story? >> the first time i spent a meaningful amount of time with nate justice was in a visit to tuscaloosa, alabama law school to give a lecture. harold albritton is a federal district judge in alabama. i think for five generations of alabama lawyers from the family. they have a lecture series that
almost every justice of the court has participated in. often, they schedule it in conjunction with a football game. that weekend was the alabama- tennessee game. we refer to that as the third saturday in october. it does not matter that this weekend is the fourth saturday in october, because alabama and tennessee are crying, so it is really the third saturday in october. the bad news is that -- he regaled us with stories the night before about his love of nascar, but he arrived at brandon he stadium. he is a nebraska fan. number aska had had -- number aska had had a tough morning. they had played the 11:00 game
against iowa state. this was before iowa state would be ranked. iowa state had beaten beb -- nebraska. he was out in the best of moods, but it was remarkable to see his interaction with people at the stadium, particularly cafe type, food service workers. they are also members of the board of trustees of the university. everyone wanted to meet justice thomas, have their photograph taken with him, chat with him about the day and the game he loosened up pretty quickly. this was 2009. this ended up being a really close game.
this was the coach's first national champion season at the university of alabama. an undefeated season was on the line. it ended up coming down to a field goal on the last second that alabama blocked. it was remarkable to see the justice's transformation through the afternoon. he really got into it. he was totally into this very close back-and-forth game and when alabama blocked to end the game, that is known as rocky block, the stadium erupted. it was pure joy on his face. this was, to me, captures the real clarence thomas.
in so many ways, such a regular person, genuinely warm person who has a love of life. he was so popular with so many regular alabamians who work so honored to meet him and who he met and made every one of them the center of his attention. it was a terrific beginning to what has become a great friendship. john: i did not know that football was played at the collegiate level. >> i do not talk football anymore. there is not much to say. after my father spent every weekend good to the football games -- glued to the football
games, he died before the southwest conference failed. therefore, eight-year later, it would have been no texas versus texas a&m thanksgiving name. had he not died, that would have killed him. that was the end of my interest in football. i cannot talk about that with justice thomas. i think i met him when my law clerk greg coleman was in one of his early classes of law clerks. you may know about greg. i came up to visit greg. the justice ushered me into his office. we started talking. what is an introductory conversation with him often turns into at least 30 minutes.
in the ensuing years, we have had a number of those conversations. the thing about justice thomas is what you see is what you get. you can call his jurisprudence the jurisprudence of what you see is what you get. i love him to death, i love virginia, i love those stories about traveling around the country in their rv, where they stop at a walmart or a home depot and there are other people there in their own rvs and nobody knows who he is. one problem we have nowadays is that some judges wouldn't rather be personalities than judges. that does not characterize him. one other thing, i attended hillsdale college when they
inaugurated their new chapel a couple of years ago. he gave the inaugural address. if you are interested in gaining a real insight into the mind and also of a man who believes deeply in god as well as in the constitution and the american system, i urge you to read his inaugural address for that chapel. thanks. >> i first met justice thomas when i interviewed with him for a clerkship -- unsuccessfully the first time. that was the first time i had the opportunity to meet justice thomas, but it worked out in the end, in part because i was working in the u.s. senate, sought the justice in the cafeteria, and that led to a clerkship. having been a clerk one of the
greatest privileges of my life to clerk for such a jurist. he has taught me so many lessons about how to be a great person, watching him interact with his colleagues but with everyone in the courthouse from the person in the cafeteria to the man rolling the books into chambers to the woman running the elevator, it is a real lesson in humility and life. for me, it has been one of the most significant relationships i have had in the past 20 years. john: naomi and i share that. we both interviewed with justice and were not hired, but i did not stalk him to get the job.
>> everything my colleagues have said about justice thomas being a regular guy is certainly true. there are thousands of stories to that effect. when he came to pittsburgh, i had the privilege of being one of his interlocutors at duquesne. the story i want to share is in the category of things people never hear about justice thomas. they have heard more and more about how he treats every human being with dignity and respect, but this was a very special trip we took to washington. the judge was looking at photos in my chamber. he asked me about one. i sent that is my little brother to the big brothers, big sisters program that i have been involved with. he said, one thing you will like being a holocaust guy is that he
is a big fan of ct. i got a phone call from judge leon. a few weeks later, my little brother and i were in d.c. we watched arguments. my little brother got an audience with someone he admired. he sat us down, about an hour and 20 minutes later, he said, there is a dean of the school out there. i was the post to see her an hour and 15 minutes ago. you had better get moving. it was extraordinary the way he got to know my little brother, counseled him, advised him about
the challenges he would face growing up in this country. it still moves me to this day. i respect the justice for many reasons, but that one is high on the list. let -- john: let us start on the substance of the program. we thought we would have more of a conversation. each of the judges has agreed to cover certain areas of jurisprudence. i would introduce the cases and coat here the other panelists have two think about the opinions. maybe what we could talk about at first is thomas's longest opinion, his assent in the case where is the struck down efforts
to impose term limits on federal representatives to congress. justice thomas wrote the lead descent. judge jones, do you want to start off? judge jones: when john assigned this to me, i had not read the case lately. i think, i do not read some of the court cases that i do not think i am going to have to deal with, because they are so long. it turns out -- john giggles -- this is supposedly the longest opinion that justice thomas has written. i kept reading and reading. of course, it is longer because it is full of substance. i am borrowing a couple of my thoughts from professor ralph rawson of claremont, whom i met you is a go judicial conference
that was later outlawed, called understanding clarence thomas: the jurisprudence of original meaning, which is a thorough rundown. the basic idea of justice thomas's descent on u.s. term limits is all powers not delegated to the united states by the constitution nor prohibited by it to the state are reserved to the states or the people, or the 10th amendment should have allowed the state to add certain additional qualifications for members of congress. article 1 said the only qualification for congress be a person be at least 25 years old,
a citizen of the united states for a period of time, and an inhabitant of the state. the question was whether the people of arkansas validly enacted a state constitutional amendment that said if a person had been in congress more than -- i think it was three terms -- if they wanted to run again for the office they had to do it by write-in ballot. it did not take them off the ballot, the voters had to deliberately choose them. justice stevens goes into original meaning at great length. justice thomas goes into the original meaning of the 10th amendment at even greater length.
the principal starts off with the 10th amendment. what does it mean to say the people ratified the constitution of the united states? justice stevens's argument is predicated on, this is by the people, ratified by the people, therefore these qualifications are exclusive to the constitution and may not be interfered with by the state. justice thomas takes its on directly, talking about the people of the state ratified. it was the people in the states that ratified and did not give away their powers. the federal government and the state faced different default rules where the constitution is silent about exercising
particular power. it does not speak by necessarily implication. the federal government lacks that power and the states enjoy it. she goes on to talk about what are reserved powers. i could spend a long time summarizing the opinions for the sake of discussion. i will not do that. i will point out a few things. he wrote this in 1995. he had been on the court only four years. it is a tour de force about original meaning. it is a very difficult argument from the standpoint of the dissent because one would think offhand, when the constitution -- qualifications, obviously those have to be the only qualifications for representation in congress.
one of my favorite justices of the supreme court said these qualifications had to be exclusive. fourth, he takes on the idea that if -- the idea behind what a justice said, if they are not exclusive, states could undermine the very principle of representation in congress in two ways, either by setting qualification so high that effectively they were not participating in congress because they could not elect many people, or by setting them so high that they were moving back toward an aristocratic conception of the office holding, which is what the framers, in part, were trying to
avoid. it is not the easiest argument to make but i will say he does a magnificent job. he also has to take on the language of the qualifications cause, the argument that "democ ratic principles lay behind this argument for exclusivity, and the weakest" argument -- in fact at the time of the framing, several states had additional qualifications for service in congress. in fact, if the qualifications stated in the constitution are exclusive, a state cannot bar a felon from serving in congress, not that that has not happened before. they cannot literally prohibit it. i would introduce this as one of
his earlier opinions, stating fourth what is called a jurisprudence of original meaning, which takes on, first, the text. and then the way in which the provision was structured at the time of the framing in order to elucidate its meaning. and then, the naive notion that, gee whiz, the original meaning at the time of the constitution is the way it should be applied today. >> at the time, people criticized the thomas opinion as perhaps being too anti-federalist. there was this idea, if justice thomas is right, could states instruct senators how to vote? and really interfere with federal officials?
what do you think of that criticism? >> this reminds me -- this is not about me -- i had only one senator in the room when i had my confirmation hearing, and that was strom thurmond. that is not controversial. [laughter] >> and some who did not learn their lesson and continue to do so. >> i do not speak ill of the dead when he said, young lady, what you think is the role of the 10th amendment? at that time, 1985, having litigated only a couple of constitutional law cases in an otherwise career devoted to
general litigation and bankruptcy law, i said, sir, the constitution gave certain powers to the federal government and whatever it did not get to the federal government were retained by the states. he said, young lady, don't you really mean states gave few powers to the federal government? [laughter] >> i said, yes, sir, you are right about that. i do not think that is the theme of this. the only way you could make the argument that -- by somehow saying the idea that the people acting in the state ratified the constitution somehow means that you have overbearing state authority.
it is very amusing. he starts out by saying it is ironic that the court bases today's decision on the right of the people to choose whom they please to govern them when in fact the measure had been adopted by a state constitutional amendment. later on -- what is the other case i was looking at? in the voting rights -- in one of these more recent cases, where the voters -- it was the arizona independent redistricting case. you had a majority of the court saying, oh, well, arizona adopted this district as a matter of a ballot initiative and therefore it is entitled to the highest deference. the argument of the dissent was article 1, section 4 says
legislative district must be done by the legislature. it was a contradiction to the constitution and thomas. it was set it was ironic they are talking about deference to ballot initiatives here when they are not paying attention to them and things like term limits, abortion, the sanctity of marriage, and so on. >> any concurrences or dissents? let's move onto the next federalism topic with a judge that has agreed to talk about two cases, including united states versus lopez. u.s. versus lopez was about the conviction of a child who brought a gun to school in violation of the gun free school zones act.
the new york daily news on the front page said case of pistol packing pee wee made it to the supreme court. the court 5-4 struck the law down. a 2005 case, to the surprise of some, the court upheld the controlled substances act in a case where one person grew marijuana at home, gave it to another person. believe it or not, the fact this case arose four blocks from my office in berkeley, california, who would have guessed? the court by a 6-3 majority held the commerce clause could reach the gift of marijuana because in the aggregate, it had a substantial effect on interstate commerce. >> like the case judge jones
presented, lopez, early justice thomas, 1995. one observation i will make is i did not notice it at the time, certainly. perhaps few did that this was a sign of the difference between justice scalia, who i think called himself a fainthearted originalist, and justice thomas, who is a full throated originalist. here you have justice scalia joining chief justice rehnquist's opinion. justice thomas writes -- justice scalia does not join. there were many other times were justice kalina or justice thomas was separate and might have joint. here, justice scalia does not join.
it is essentially a critique of the substantial effect notion that anything that has a substantial effect on interstate commerce is regular ball under article -- is under article 1, section 8. congress may only regulate commerce among several states, but also anything that has a substantial effect. if taken to its logical extreme, this would give congress a police power over all aspects of american life. that is a theme he has returned to again and again and he returns to in his shorter, separate dissent. he is expressing this concern that if we read the commerce clause power so broadly, and the
court has read it since the new deal cases, according to justice thomas, it would give the federal government unlimited power. right away, he is staking out this structural concern about the balance of powers between the federal government and the state governments. one of the quips he makes in the lopez case, it seems to him the power to regulate commerce can by no means encompass authority over gun possession more than it empowers the federal government to regulate marriage, littering, or cruelty to animals among the 50 states. it is consistent with that theme years later. he talks about other very local activities, including quilting, and a couple of other very local
activities that everyone says, what does this have to do with interstate commerce? the image that came to mind when i was reading these cases was the wings of a butterfly idea, or the ripples in a pond. that is what he is pushing back against. the notion that if you take any one thing and aggregate it, it can result in a very serious affect, but that is not the way we should be looking at the commerce clause. interstate commerce is something that is qualitatively different, he also says. the originalist point he makes, he goes back to founding era dictionaries and the debates at the ratification -- during ratification of the states, and those debates indicate that the federalist and the anti-federalist saw a distinction between commerce on one hand, and agriculture and
manufacturing on the other hand. if justice thomas is right about that, what does that say about -- he makes this distinction between transporting goods and selling goods, trading across state lines, which is in the heartland, and on the other side of the break and are agriculture, manufacturing, producing things out of the ground or in a factory. that is qualitatively different than commerce. it does not become commerce until it starts to get moved interstate. that is an important first principle argument that he staked out very early in his jurisprudence and it has certainly continued consistently over his years on the court. and again, another important
distinction is justice scalia is now against justice thomas. in lopez, they are together on the results. in gonzales, they are against one another. one of the questions i wish i could have asked justice scalia in private is, if there were a couple of grapes in the backyard and was making her own wine, would you have come to the same result? i don't know. justice thomas, clearly this was a bridge too far for him. his dissent is really not focused on article 1, section 8. if you read his dissent, he only very briefly addresses that. he said this obviously is not interstate commerce. he spends the great majority of his dissent engaging on the
necessary and proper clause. that is where the battleground is. he explains what he disagrees injustice's -- you have a great debate between justices scalia and thomas about how much work is necessary in the clause that can do in service of the commerce clause. these are two wonderful opinions you can keep coming back to and never get tired of. >> that brings a question to mind, what do you think about justice thomas's approach to precedent? neither of these opinions seem to pay much deference to decisions of the past on the commerce clause. does that make these pleas to return to the original
understanding that do not have much chance because they are so sweeping the dismissive of precedent? did they really have an effect? >> one thing i did notice on that issue, john, is justice thomas drops a footnote in lopez , which is, i think, a response to the notion that he is trying to upend the apple card completely. what he is saying is we need to re-examine our commerce clause cases. he said something about, what do you do with 60 years of jurisprudence? i'm not sure. when i read that in preparation for this, it seems like something he would not write now . i think a judge would perhaps have more insight. that is a step backwards.
he mentioned -- in the footnotes. his more recent opinions, i'm not sure that is a step back. the most significant opinion he has written on his view of stare decisis was pretty recent. everyone says, justice thomas does not believe in precedent. it is not exactly right or fair. he thinks we take an oath to uphold the constitution, the constitution is the ultimate and that is what matters first. if you want to look at a fairly recent example that makes a difference to the justice, look at the gamble decision. justice thomas had been one of
the early skeptics of the notion that the double jeopardy prohibition would allow a state to prosecute someone for an offense, have that individual acquitted, but then a separate sovereign the federal government could prosecute that same offender for essentially the same conduct. and then the court decided to re-examine extremely long-standing precedent about just that. at the end of the day, the court stuck with its precedent, and there was justice thomas in the majority -- i think it was 7-2, was the final vote, with justice gorsuch in justice ginsburg in
dissent. justice thomas looked at it and said, now that we have had that opportunity to examine this, there are good arguments on both sides, but i cannot say this is demonstrably erroneous in the language that was entered to us all, and he stuck with the president. -- with the precedent. >> i do think justice thomas has become less favorable to precedent over time. he said we cannot compromise when it comes to our government structure in calling for overruling. to judge prior's point, his
opinion on precedent is more nuanced than people think. i think justice thomas does not have so much hubris to think -- rethink the whole constitution. that is what is reflected in some of the footnotes or other places where he suggests that we need to think about the precedent but we always need to look to the constitution, which is what we as judges take an oath to uphold. >> you can see he takes most issues step-by-step over a period of years. a good example of that is his opinions in the voting rights act area, where in 1999 in one of the cases, just remember section 5 of the voting rights
act which required preclearance for every single changed vote that a state or municipality might make had to be precleared by the u.s. justice department. remember the huge federalism cost that that exacts. it was 10 years in the northwest mug case, -- northwest mud case, the court gave a minimalist ruling and thomas filed a concurrence, saying we really should have ruled on whether section 5 is constitutional at this point in time. that case was 2009. in shelby county, just a few years after that, the court said, most of the things that
justice thomas had said in his concurrence in the case, and said, well, now we say the coverage formula, which is section 4 of the voting rights act, is in fact unconstitutional. section 5 is looming to be reinstated if congress decides to apply pre-currents across the entire united states. we will see how far the fifth amendment goes. he points out -- he was not making a full exposition about section 5 in 1999, but six years that argument is still out there, because sadly, whatever you allow congress to do, it probably will be someday. as far as the commerce clause dissent goes, that is a very important dissent, just to
remind us how far the powers of congress have strayed from what many of us, including richard epstein and humbly myself, think was the original oath of the commerce power. but in the terkel case -- not terkel in my case, but the case that resolved the moratorium issue, it is the same decision, so as not a definitive decision. it was a 5-4 stay where the supreme court took up the d.c. court ruling and said, we are not going to dislodge the decision of the district court to overturn the eviction moratorium, and they said but of course, congress could have imposed an eviction moratorium.
just think about that in terms of the fact that the moratorium did not prevent landlords from collecting their rent, which would have been arguably a commercial aspect of the transaction. it prevented them from going to court, because the essential terms of the real property lease had been terminated by the tenant's failure to pay rent. so it was a very, could be a very consequential imposition or expansion of the commerce clause , just like one might say, not commenting on current other measures. [laughter] >> consistent with what judge rao said in a concurrence, in a
federal bribery case, justice thomas wrote that it is a valid exercise of congress' power, at least under this court's precedent. he went on to say, i think we have failed to correctly reinterpret the commerce clause, but because neither party requests us to do so here, our prior case law controls the outcome of this case. i think that is a great example of justice thomas' approach to judicial restraint. want to buy pet peeves, i call it an opinion in search of a case. a pet peeve of mine is when judges have these opinions and they want to write them because they have something important to say, and they forget the case or controversy requirement. i think it is telling here that justice thomas is saying, the court has not agreed to reconsider precedents and the
parties have not needed it, and that's a great way to go around judicial decision-making. decide what is in front of you. >> that's a great segue to the cases judge pryor is going to talk about. judge pryor will talk about the separation of power, two sets of cases here. the first one, the first two, the justice might be up -- accused of writing an opinion in search of a case. this case was a very strange case where basically an immigration advocate was prosecuted for illegally encouraging aliens to stay in the country, in violation of immigration law. in the trial court, i believe the defendant did not claim the law was void for vagueness. sorry, overbroad.
they always seem the same thing anyway. >> they are closely related. >> closely related, but both being unjustified by the constitution, yes. so the ninth circuit here, i don't know if any ninth circuit judges are here today. they should be called upon to explain themselves, this and many other items. the ninth circuit shows amicus to brief and argue this issue. the court unanimously sent the case back, but justice thomas use the opportunity to write an opinion about whether he thought this was required by the constitution. there was a second case judge pryor will talk about call johnsons versus united states, which is in a 21 case, which involve the armed career criminal act that said if someone had been convicted of three "violent felonies," they would be subject to enhanced sentencing.
the court said that violent felony was vague. in fact, in the facts of the case, one of the felonies was just to have a shotgun, a short-barreled shotgun, was a violation of the law. justice thomas used this opportunity to discuss whether the void for vagueness doctrine had any real reason. >> what is most interested to -- what is most interesting to me in these cases, is the approach to structural constitution. particularly to the provision of the constitution that has been the source of the greatest mischief in the history of constitutional law, the guarantee of due process of law. beginning with dred scott. the difference in the approach to those issues, between justice
scalia and justice thomas, justice scalia was often described as the court's greatest defender of the structural constitution, and is often described as the originalist justice whose method was most, you know, best promoted judicial restraint. most concerned about judicial restraint. these cases, i think the justice who is better described that way is justice thomas. his concern -- i will start with johnson. the criminal act and its residual cause, what is a violent felony, had come forward to the supreme court on three previous occasions and on three
previous occasions, the supreme court had applied it to crimes committed by offenders who were getting longer sentences, triggering a lengthy mandatory minimum sentence, and on three occasions, the supreme court had upheld the constitutionality of the statute. but johnson comes along and the court, because i guess it feels bedeviled by the continuing problem of applying this statute to different kinds of arguably violent crimes, johnson was, his crime was allegedly a violent felony, triggering the mandatory minimum penalty, was possession of a sawed off shotgun. justice thomas thought it easy to say that the mere possession
of that weapon was not itself a violent felony. but he refused to go along with the court and justice scalia's approach of declaring this statute that they had three times before upheld as void for vagueness. he criticized the vagueness doctrine as inconsistent with the structural constitution, a disrespect of the legislative power, congressional power to prohibit certain conduct, and an exercise in judicial power that goes beyond deciding the case before the court and declaring whether it is unconstitutional in all applications. after johnson, this provision in
supreme court or popular terminology, essentially struck down, right? we often say the court strikes down a provision of federal law. justice thomas takes issue with that. courts don't strike down. courts don't repeal. courts don't remove provisions from the united states code. courts decide cases, and the case before us is an easy one. the case before us is one where this possession of this weapon is not a violent felony within the meaning of the act. we have no occasion or no right to be saying anything about other cases that are not before us. he then does the same thing with the overbreadth doctrine in the smith case a few years later. he criticizes the overbreadth doctrine and says, look at what
we are doing in the name of due process. instead of evaluating whether this individual's speech is protected by the first amendment, we are asking whether this state law, so this both has horizontal and vertical structural restraint concerns for justice thomas, both vagueness and overbreadth doctrines were with respect to both structural restraints, we are asking, well, in a hypothetical case, this law might be applied to protected speech. we are not asking whether this individual has a real injury here. we are asking whether it might be problematic in another context. again, we are pretending that we have this power, what is essentially a legislative power,
to balance certain cost and benefits and to protect certain speech that is not the speech engaged in by the person who is before us. in a real sense in this area, he is parting ways with justice scalia, but here is justice thomas, who is the defender of the limits of judicial power, the defender of restraint. and the respecter of the structural constitution. >> let me ask other judges also, is there a consistency to justice thomas, these opinions about attitudes towards judicial power? i can't help but notice in the commerce clause cases, he is calling for the courts to be very active, striking down hundreds of federal laws. in your example, he is claiming
courts should beast decking -- should step back and be more respectful of congress. we are going to talk in a few seconds about his clarion call to get the court involved in overseeing the activities from the administrator's seat. is there a consistency in his approach to judicial power? is he a judicial activist? can we say those words and heritage, john? is that allowed her on my going to be removed by security? >> i think, if i can, there is a consistency in the sense that if you look at his opinions in the commerce clause, in matters like , as i mentioned, the voting rights act, the brady act prince case, the supremacy clause cases
, he's very concerned about the structure of the 10th amendment, structural constitution, as a blurt of liberty -- bulwark of liberty. they work together to protect the individual liberties of the people. part of the potential for abuse arises from article three itself, stepping outside its bounds. >> i think that's very well said, the consistent theme is protecting the individual from the state, whether the state be -- primarily the federal power. there is almost an interesting tension there, i think, in the sense that he certainly has a less capacious view of
constitutional rights compared to some of his colleagues, but when he sees a right, he is going to make sure it gets protected all the way and he is not going to compromise. the fact that he has written individually so many times is a testament to his independence, and that is something we should all celebrate, the fact that a judge is not making sausage the way a legislator would. he is expressing his view as clearly and politely as he can. you might agree with it or disagree with it, but you know it is his view and it has been carefully thought through. >> naomi, do you want to go ahead, since we are running out of time? >> yeah, we don't have so much time. ok, so maybe i will talk a bit the medically about some of his more recent cases, about the administrative state. justice thomas, as it has
already been said, is a committed originalist. he is committed to the original meaning and has been very focused throughout his career on the protected structure of the constitution and how that text and structure protect individual liberty. i think it's entirely in keeping with that much of the focus on some of his separate writings over the past 10 or 15 years has shifted to thinking about how the original meeting of the constitution is at best in serious tension with the constitution. i will highlight a few things about that. this is an area where the justice cozy views have been changing over time. justice thomas authored the opinion in the case called brand x, which had a very deferential view to a ministry to agencies.
in that case, the court held, justice thomas held in his opinion that a court must regard its prior precedent interpreting an ambiguous statute in favor of an agency's later interpretation of that statute. when i taught at -- a class with justice thomas on state, he described it as going to the edge of the abyss. that's when he got there and. over into the void, and he realized everything had gone too far. so we have seen since 2005, i think, him walking back from an expansive view of deference to agencies, which is of course about the judicial power. but maybe one of the things that connects his opinion about administrative matters is his real focus on the formal vesting of the three powers of
government in three distinct branches with distinct characteristics. in each of these opinions, he is really trying to give content. what is the legislative power? what is the core aspect of the legislative power, the judicial power? we see that in cases, in his decisions in the association of american railroads case, the amtrak case. he elaborated on the non-delegation principle, which is all about article one, right? what is essential to the legislative power? why cannot power not be delegated to or exercised by executive branch agencies. you know, i think that opinion is incredibly powerful. they elaborated on themes of the nondelegation principle. he has talked about the
importance of executive power, where should independent agencies, to what extent are independent agencies consistent with the vesting of all executive power? justice thomas says it is not. i have written agreement with that view, but you know, again, you see he is talking about, what is essential to the exercise of executive power. from his perspective, it means the president must have the ability to direct and supervise exercises of executive power, even by the so-called independent agencies. and all of these cases are, of course, in part about the judicial power. to what extent can people challenge government actions, agency actions, and in that vein, i think some of his recent standing decisions are very
interesting, because he is rethinking some of the traditional ways of thinking about standing that justice scalia had elaborated in his opinion in wuhan in the 1990's. he is thinking about how the adjudication of private rights is the essential aspect of what courts are doing when they decide cases and controversies. i think that is a view that is still developing, but i think it is part of a piece with many of these three considerations of the administrative state. to the extent that justice thomas is doing this, it's not, each of his opinions, very importantly, is not about formalism for its own sake, but about how structure of the constitution, the structure of the government serves to further individual liberty. to the points about precedent, i
do think the discussions about, his separate writings about the administrative status are ones and where he has pushed for overturning precedent about the nondelegation principle, humphrey's executor with regard to protection for independent agencies, and in that vein, i will cite the justice himself, who was saying, we have a responsibility to examine without fear and provide without reluctance any haste to -- paste or crew decisions and the beauty and harmony of the american constitutional system destroyed by the perpetuity of error. so i think some of his most forward leading decisions have really been in this context. >> we have about 15 minutes left. i would ask questions from the
audience. there's microphones. if you raise your hand, just stand up and say your name. make sure it is a question. please don't engage in your own personal opinion, issuing your own personal opinion from the bench. anyone for questions? right here. >> this question is for judge rao. justice thomas' dissent meant that the court lies on wresting cost of the appointments clause. that seems surprising to me, given the writings on this clause -- was it to you? should i be surprised?
to rely on the criticism that they were using, the numbers and emanations, structural considerations, non-clearly textual considerations. >> i think structural considerations are often rooted in the text, but sometimes, to some appearance, they can look like emanations. i think real structural constitutional law that is focused on the structure through the text is not in that vein. >> other questions? otherwise i'm going to ask 10 or 20 that you do not want to hear. so please -- right here in the back. stand up, because we can't see you. >> i am jan. thank you, this is amazing. >> no, we don't want any questions from you. [laughter] >> you get people in trouble when you ask questions, jan.
>> to kick this full day off, we have heard about justice thomas and his robust defense, restraint, the structural constitution, but i want to know your bottom line. when we talk about 30 years on the court, what is the bottom line? what it means? what is justice thomas' legacy? >> the elevator pitch, if you would. >> i think it's important to frame that, because i think people have their own views on justice thomas. what is his impact? what is his legacy? >> i think he has been an essential ingredient to the case for originalism. five years ago, there was a 23rd amendment anniversary at yale law school, and on his criminal
justice decisions, i began focused on the difference between justice scalia's approach and justice thomas's approach. it's one thing to have one originalist justice, this is how i will approach the constitution. but when you have a second, then the applicants can no longer ignore it. the court is closely divided, two justices, twice as important as one, and -- i look at what are justice slowly is best originalist opinions. crawford versus washington. it was justice thomas, though, who a few years earlier suggested that the court's approach to the confrontation clause needed to be rethought. that's what led to the opportunity, where what
motivated counsel to start making the ar guments, and as the more senior justice, justice scalia had the opportunity to write the opinion. but it was because of justice thomas' separate writing that this is something that needed to be rethought. in many respects, when they would disagree about originalism , one in the majority, one in the dissent, all the other justices were joining their opinions, but they were all arguing from an originalist perspective. i would say his legacy is, he has been the essential ingredient in making originalism matter in a way that no single justice could have. >> the only thing i would say about that, phil, is we've got at least four members of the
current court who consider themselves originalists. the widespread view of the legal academia, many in politics, the media and so on is to ignore them all. >> we will see what happens when you are a lawyer and you have a case in front of those four. >> or some on the lower court to have been recently appointed. that is certainly true. i characterize his importance in two ways, although it might be better to do this at the end of the day rather than now. the first is, as some left-wing publication headlined a retrospective on him about three or four years ago, they consider him the most dangerous judge in america, because he dared to say things and open pandora's box about arguments that have been sealed shut for decades. how dare a judge tried to do
that. the worst was, he is influencing many young people nowadays. [laughter] i think what he has written has been a very powerful influencing not way. second, if he is, in the fact that he is very transparent about his background, the hardships he has faced, where he came from and so on, he is the living embodiment of the promise of liberty in america. we have racialized so many things, many of my law clerks are living embodiments of the promise of living in america. but because he is a black man, he is courageous, he is independent, whatever they say about his jurisprudence, which is highly intellectual, they can't get away from that symbol. >> i don't know if i can improve
on that. my elevator pitch is, justice thomas, his legacy is courageous fidelity to the constitution. wherever that may lead him. >> i got nothing left. [applause] -- [laughter] >> i think bill summed up well the jurisprudential legacy, but jan, let's face it -- most of america is not interested in the things we are interested in, and most of america does not read the things that we read. i think his legacy will be one of the most extraordinary americans who ever lived, because of the things that noemi just said about it being a constant american
story. like i said earlier, we are all in trouble of big brother is going to tell us what to think and go -- what to say, and justice thomas' courage in the face of acrimony, standing up for decades and writing what he thinks. whether you agree with him or not, we should all respect that. that kind of honesty and transparency is something that america has been founded on. >> i will just add, if i could, i take a slight issue with your question, jen. it's not the end of his judicial career. we are looking back at 30 years, but as you can see, he is charting a very radical approach to judging. it is surprised that -- surprising how far the court has moved in that direction in 30 years. what do you think will happen in the next 10 years when you might
have a work old majority -- workable majority of originalists? i think it will be really remarkable to see how it works out. we will see what chief justice roberts makes of it. anymore more questions on this side? >> one over here. >> great. >> oh, sorry. can you talk about -- justice thomas, especially since the passing of cilia, any leadership we have had to finally get that to turn over and have the court actually addressed something that has been kind of bubbling up. >> what do you think about the future of chevron deference now that justice scalia, justice scalia and ginsburg were both its greatest fans and they have both left the court. what do you think?
>> you know, -- >> not all of us are on the d.c. circuit judge. [laughter] >> yeah. i think one of the interesting parts that justice thomas is highlighting, in some ways, deference isn't the main problem. the main problem is delegation. if congress is going to continue to delegate to agent these incredibly wrought authority, judges are going to have to do something that looks like deference, whether we call it chevron deference or something else. i think that if we move away from, if the court starts to have more robust of enforcement, that will lead to less deference to agencies. but until then, i think some of the labels may change. i think it's unlikely -- if agencies can exercise so much
discretion under these broad statutory authorities, there is not much for courts to do other than something that looks like deference, unless the agencies really stepped out of its statutory authority. i think the core of the problem is delegation. >> as usual, the d.c. circuit judge as everyone else in the country to death. [laughter] >> i clerked in the d.c. circuit judge so -- >> noemi makes it as interesting as it can be. >> we have time for one more question. come on, this is your chance to ask questions of the judges, rather than vice versa. over here -- last western rate. no, just don't talk. ask a question. [laughter] i know, i know. i'm just kidding.
>> i would ask, what do you see someone like the issues that will be dealt with in these next 10 years? like the next 10 years, that you said, will come to fruition. what do you think will be the questions the court has to deal with. >> client privilege. we are judges, or, ladies and gentlemen. we are not guys. i just say that because that is the one thing i will call counsel out on in court every single time. >> i think keep in mind, to return to a theme that i was mentioning with respect to justice thomas' jurisprudence on the duke -- due process clause, we don't set agendas. the cases that are going to come before us, sure, we have a
steady diet of particular kinds of cases, but a lot of it is dependent on controversies that we can't necessarily foresee. we don't know who is going to control congress, what kinds of laws they are going to pass and what kind of arguments litigants are going to bring before us. at the end of the day, our power is a modest power. we are going to decide cases or controversies. i don't know what the next 10 years brings. i don't think any of us really can. what i do know is that we've got more justices on the supreme court who share justice thomas posey perspective, that what really matters is the text and original meaning of the constitution, and that's going to be a very exciting thing to see. as unforeseeable cases or controversies come before us. >> let me sharpen up your
question. i don't think this will be covered by the other panels. one thing we can see coming down the road is big tech and social media. what do you guys think about the potential approaches -- [laughter] we have one minute left on the panel. >> you are asking four judges to comment on matters that you are predicting will come before the court? [laughter] that's why you and richard are so great on that podcast. >> what do you think, john? >> oh, do we have time? >> an interesting opinion about what to consider big tech. are they common carriers or not? >> i'm not asking you to say how you would rule, what is your opinion of big tech? >> you got to be kidding. [laughter] >> jan, help me out. you are better at this than i am. how do you get judges to talk about things they are not
allowed to? >> we don't live in silicon valley. >> i can't think of a better way to and then seeing judges reviewed chancellor questions -- refused to answer questions. thank you for joining me, and they cue to the panelists from the heritage foundation. [applause] >> thank you so much for your leadership of that panel. judge pryor, judge hardeman, judge jones, what a great way to celebrate 30 years of justice thomas jurisprudence. i am glad it was not just the opinions and so many areas involving the rule of law, but anecdotes. we look forward to hearing much more throughout the day. we will have a 10 minute break. when you come back to the auditorium, make sure you keep your masks on. we will come back at 10:30 to start a wonderful discussion of the justices jurisprudence in
the area of constitutional liberties. thank you. [captions copyright national cable satellite corp. 2021] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] >> tonight, the professor of philosophy at the university of british columbia traces the evolutionary purpose of intoxication and the role that drinking has played throughout history. >> alcohol makes it harder to lie. it makes us better at the taxing lies. when we are focusing on that, we don't do a very good job of it. if we relax, we do a better job.
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