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At the Heritage Foundation, Justice Thomas discusses the confirmation process, Scalia and road-tripping

“There’s always hope,” Justice Clarence Thomas said last night at the Heritage Foundation in Washington in response to a question about whether the confirmation-hearing process is “broken.” “But this city is broken in some ways,” the justice continued. “I think that we have become very comfortable with not thinking things through and debating them.”

Thomas correlated willingness to debate – “not who speaks the loudest or who has the best narrative or the best meme or some other nonsense” – with the strength of America’s governing institutions. He expressed concern that “we’re undermining our institutions, and the day is going to come when we need the institutions and the integrity of the institutions.”

Thomas did commend his fellow justices on this point – “one of the things I love about the court, you actually talk to people” – but he did not completely exempt them or himself when asked about the public’s confidence in the Supreme Court.

“Perhaps we should ask ourselves what we have done to not earn or to earn people’s confidence,” the justice suggested. In his view, that confidence does not depend on people necessarily liking the court’s opinions, but in their sense that the justices are doing their jobs fairly.

Thomas recalled a visit to Gettysburg, when he noticed a man running towards him up the hill at Little Round Top. Reaching the justice and handing over what Thomas called “some fake parchment paper,” the man gasped, “I need you to sign this. It’s your federal maritime commission opinion!”

Thomas burst into laughter as he recounted this incident. “But that’s what this is all about,” he concluded: The man at Gettysburg had not said he agreed with Thomas’ opinion, but that he understood it. Supreme Court justices, Thomas explained, “are obligated to make the Constitution and what we write about the Constitution accessible to people.” When justices write in inaccessible language, “we hide it from them.”

Thomas spent much of the evening speaking to the receptive audience about substantive topics such as the role of precedent and the jurisprudence of different clauses in the Constitution. He also spoke light-heartedly, about the Affordable Care Act being a misnomer and about the late Justice Antonin Scalia. Thomas chuckled in retelling his own response – which he said Scalia also found “really funny” – to an an invitation to attend the opera: “I like opera, I just don’t want to be around the people who like opera.”

And on the bench during oral argument, Scalia once leaned over in Thomas’ direction. “Clarence,” he whispered, “Auer [v. Robbins] is one of the worst opinions in the history of this country.” “Yeah,” Thomas smiled back, “you wrote it.”

According to Thomas, Scalia found it “really odd” that Thomas, a Georgia southerner, did not hunt, while Scalia, from New Jersey and New York, loved the activity. “No good comes from being in the woods,” Thomas said he used to protest to his friend and colleague.

Thomas does, however, enjoy road-tripping around the country. He likes to take his law clerks to Civil War battlegrounds and other historical landmarks. It’s important, Thomas believes, that his clerks “not just talk about the 14th Amendment, the equal protection clause, or substantive due process,” but “go and feel it” at places like Gettysburg. “To understand the 14th Amendment in particular and the post-Civil War era,” Thomas explained, “you have to understand the Civil War first.”

Thomas also described the RV trips around the country he takes with his wife, Virginia. He enjoys traveling incognito. Once, at a gas station in Brunswick, Georgia, a truck driver asked, “Anyone ever tell you that you look like Clarence Thomas?” “Yeah,” replied the justice. “I bet it happens all the time,” the man said as he walked away. Thomas finds RV parks to be “very democratic, with a small d.” On these trips, he says, he gets the chance to encounter “the constituency for the Constitution; it’s not this city, it’s not the people who are doing all the talking, prevaricating.”

Recommended Citation: Andrew Hamm, At the Heritage Foundation, Justice Thomas discusses the confirmation process, Scalia and road-tripping, SCOTUSblog (Oct. 27, 2016, 11:28 AM),