A surprising two hours
with Justice Clarence Thomas

- by Alice Marie Beard

Supreme Court Justice Clarence Thomas spent two hours with 14 law students on Holy Thursday, 2000. He commented on topics ranging from U.S. v. Dickerson to why he does not ask questions from the bench during oral arguments before the Supreme Court. I was one of the 14 law students.

The Supreme Court had heard the Dickerson case the day before. He said he'd heard a female tv reporter describe the question in Dickerson as whether Miranda would be overturned by the law. He showed impatience with her ignorance and said, "It's not about overturning Miranda! The court invited other methods of determining voluntariness." [The decision, June 26, 2000; Scalia & Thomas' dissent]

Justice Thomas said that the press has criticized Justice Antonin Scalia for asking questions during oral arguments before the Court. Some journalists have called Justice Scalia argumentative. Some of those same journalists have criticized Justice Thomas for not asking questions during oral arguments. He said, "I think if we invite a person in, we should at least listen to what he has to say." In words that sounded close to what I'd once heard from a Catholic priest, he said that you should really listen if you are listening to a person. If you are thinking of your next question as the person is speaking, some of your attention is not on listening to the person.

He further explained that he had not asked questions in high school, in college, or in law school. "When I was asked a question, I answered it, but I did not ask questions." He explained that he had grown up in a rural area in the South where there remained a major influence of an African language. As he grew up, many in that area spoke a mixture of English and this old language. As a consequence, while he learned to speak standard English-only, he would edit his speech and his words in his brain before speaking. This encouraged him to do more listening than speaking.

His words about the press were, understandably, not all positive. He wondered aloud how journalists would like to have the tables turned on them, to have massive investigative forces turned loose on any one among the corps of working journalists. He also wondered whether the purpose of the First Amendment was to allow the likes of nude table dancing.

He sympathized with us as we said we'd be facing final exams beginning on May Day. He explained that, when he was at Yale Law School, he took notes on top of notes and had books filled with multicolored highlighting and notes in margins. When he would begin preparing for exams, it became a case of reducing the notes over and over until he'd reduced the notes to one three-by-five card for each class. He sees the object as stating the complex in simple form.

He talked about the Commerce Clause (art. I, sec. 8, cl. 3). He's not fond of how that clause in the Constitution has been used to expand the federal government's power. He cited the 1995 U.S. v. Lopez case; he likes that decision. He talked about "aggregation theory" and the 1942 Wickard v. Filburn case that turned every blade of grass in this nation into something that could be controlled by the Commerce Clause. "It doesn't make sense." He said he wants to bring common sense to the court.

Justice Thomas had entered after we'd been assembled in a large, dark room at the Supreme Court. He spoke warmly and cordially. Then he said he would take questions. We had not expected that. We'd been told this was only a "photo op" to make up for those of us who had not been so lucky as to get our pictures taken with Justice Thomas at the Red Mass Brunch in October 1999. At first, no one spoke; there was no question, perhaps because we were in awe. I intentionally did not jump in to speak immediately so as not to seem pushy. (Me? Pushy?) However, no one gave a sign of speaking, and I thought, "How insulting that NO ONE would ask a question." I then asked about the Supreme Court's new web page. Justice Thomas talked about the 'net in general, about computers, and about the court intranet. He said he does not like reading briefs off his computer, but he likes the ease with which files can be transferred. He prefers "hard copy" print outs of documents.

We students ranged from first-years to those ready to graduate in three weeks. There were, perhaps, four first-years. We had recently read the 1996 Virginia Military Institute case. One student asked about the case, acknowledging that Justice Thomas had recused (excused) himself from the case because Justice Thomas' son (now 27) had been a student at VMI. Justice Thomas said he thought it would have been better to have waited for the state of Virginia to realize it was time to bring VMI into the world of coed education. By chance, among us students was a young woman who had graduated from Mary Baldwin, the school where Virginia had begun a program for women that was to be comparable to the VMI program for men. Also by chance, this young woman was the college friend of a young woman who had dated Justice Thomas' son.

As I've read Supreme Court decisions, I've wondered about some of their "formulas" for making decisions. Justice Thomas surprised me when he talked about making decisions as a Justice. He said, "You begin with the formulaic method. Then, you begin to question the formulas." There are formulas for determining "substantial effect"; for deciding whether a law will be judged under strict scrutiny, heightened scrutiny, or rational basis; for deciding whether something is a fundamental right; for determining whether there is a compelling state interest to infringe on a right. They are all formulas that seem to work at obscuring how or why a judge might really make a decision. Here was a Supreme Court Justice questioning the formulas.

By chance, Justice Thomas and I share a friend. When it became clear the questioning from the students was at an end, I again took advantage of the quiet and offered him a "hello" from my friend. I had not understood in advance how completely Justice Thomas would count my friend as his friend. My friend is a modest, gracious woman from Missouri. After Justice Thomas graduated from Yale Law in 1974, there weren't a lot of offers coming to a black man, even one who was a Yale Law graduate. He accepted an offer from the Missouri Attorney General's office. There, he met my friend and her husband. She was a legal secretary in the AG's office, and her husband was a young attorney out of U. of MO. My friend had spoken positively of Justice Thomas for years. As the press had tried to savage him, she had made it clear the press did not understand who Clarence Thomas was. She'd written him once, but she and her husband had moved soon after. I was surprised when Justice Thomas so clearly wanted to be able to contact these old friends. Then I had to tell him that one of those two old friends had died 18 months ago. Justice Thomas' face looked sad, and he said, "We hung out together when we were kids." What he meant was "when we were young lawyers," but the word he used was "kids." I told him his old friend had died of a heart attack on the way to volunteering for the Boy Scouts. Justice Thomas said his own brother had died of a heart attack about the same time.

The old nuns used to say, "Tell me who your friends are, and I'll tell you who you are." While I was impressed with Justice Thomas in the two hours I spent with him, what impressed me most was who his friend was, and he made it clear this now-dead man had been his friend. Our late mutual friend was a Missouri farm boy with a ready laugh who grew up to be a lawyer filled with integrity. At his memorial service, the church was filled with Boy Scouts and over 500 other friends. A few men got up to speak about the lawyer who'd died on his way to volunteer with the Boy Scouts. One looked familiar; he had the face of President Eisenhower; it was Ike's grandson. But the one who best described this friend of Justice Thomas was the Boy Scout leader who told a little story:

Unlike what we imagine, Heaven and Hell are really side by side, divided by a fence. God and the devil have an agreement to maintain the fence jointly. One day, God found the fence in disrepair and called the devil over to tell the devil it was his turn to fix the fence. The devil had only excuses, and God said, "Now, you don't want this to go to litigation, do you?" And the devil answered, "You couldn't find a lawyer on your side."

Then the Boy Scout leader paused and added, "Today, God has a lawyer on his side."

For 16 years, I knew this man whom the Boy Scout leader praised. I knew him well, and I would agree with the Boy Scout leader's description of him. Justice Thomas made clear he had been this man's friend. "Tell me who your friends are, and I'll tell you who you are."

April 22, 2000
Alice Marie Beard

Off-site links:

Dickerson, 4th Cir.
18 USC 3501

Justice Clarence Thomas [photo by AMB]

Justice Clarence Thomas

Two other photos of Justice Thomas
are at this web site:
Thomas' court decisions
Thomas on partial-birth abortion

Interview by Bill Kauffman
# (Nov. 1987; Reason Magazine)

Basic biography
He's not going away!

Justice Thomas Appreciation Page

  stories & genealogy
with care,
by Alice Marie Beard,
Bethesda, MD
  Anyone is welcome to link to my words. You are welcome to link. You are not welcome to lift, to preserve, and/or to distribute en masse.
The copyright is mine.
For permission to quote, write
Alice Marie Beard

  Kessler Freedman's
'Political Site of the Day,'
January 1, 2001