We're back with another edition of The Federalist Radio Hour. I'm Emily Drasnski,
culture editor here at The Federalist. As always, you can email the show
at radio at the Federalist dot com, follow us on Twitter at fdr LST.
Make sure to subscribe wherever you download your podcasts into the premium version of
our website as well. Today we're joined by Judge Amull thay Par. He's
the author of the new book The People's Justice, Clarence Thomas and the Constitutional
Stories that Defined Him. I would say a really well timed book, Judge,
they bar Thank you so much for joining us. Yeah, thank you
for having me. You know, Emily, it's funny you bring up well
timed because someone asked me if I wrote it just because of this controversy,
and I thought, boy, if I could do that, that would be
incredible. Could you imagine if you could write a book and get a publisher
to publish it that fast. That is what I aspired to do. See
a controversy and get a book out in the same minute that you know,
basically weak that a controversy exists. You know, it's it's almost as though
you could have predicted the media would be attacking Clarence Thomas. You know,
it's it's I know it's surprising to everybody that, Yeah, I guess after
your point is, you could write a book anytime since he's been on the
bench, and it would be timely because of that, although it is especially
timely right now because there has been I think a thinly veiled, coordinated campaign
to discredit Justice Thomas. Also Justice Alito, just this week was the subject
of one of those fabulous pro publica deep dives into finances that he preemptively struck
down with an op out in the journal. I mentioned that because actually,
just yesterday a despicable piece ran in New York Magazine. It is one of
the most reckless and pretentious and awful pieces of journalism I've read in a really
long time. But there's a line in it that I think it's actually a
really good place to start judge the part because it's a part where this author,
who, by the way, I'm just going to mention I don't normally
mention people's race or sex, but I think it's relevant here. She's a
white woman. George Shawn graduate Carrie Hally takes it on herself to say that
it's somewhat confounding to look at Clarence Thomas's life and then see how on the
bench he's generally ruling in favor of his good friend Harlan Crowe. This idea
that Clarence Thomas's ideology is inexplicable except for the fact that a white man must
be telling him what to do. So we know how the media defines Clarence
Thomas. In this book, you focus on different cases that give us a
glimpse into this definition of Clarence Thomas. Can you tell us if this means
as a place to start? Can you tell judged They about Sapara keep mixing
it up, but you're very, very nicely fine. But can you tell
us about why that idea that caricature of Justice Thomas as you've explored through these
cases is utterly incorrect? Yeah, I can. So. It kind of
starts with originalism first, which I'm sure your listeners are aware of, and
I think too many people assume at originalism, and in fact, the critics
have done a good job and I give them credit for maybe they don't deserve
credit, but misrepresenting what originalism does? They say? The originalism as you
just highlighted favors the rich over the poor, the strong over the week,
the corporations over the consumers, and in fact, in many, many cases,
the opposite is true. And the reason I say many and not all
is because as an originalist, you have an obligate to follow the law wherever
it takes you, and Justice Thomas is the epitome of that. Even when
he disagrees with the result, he will follow the law wherever it takes them.
Justice Leah once said, you're not a good judge if you like every
result you reached, because you're not being a judge. But the thing this
book highlights, the thing that's so important to highlight, is it tells the
stories that aren't told of some very prominent cases. It tells the stories of
the real people in front of the court. And I, in the introduction
and conclusion, tell the reader what I think. I tell them that I
am an originalist, so I obviously view Justice Thomas's jurisprudence very favorably. But
in between the twelve chapters, it's about the people and what the court does
and what Justice Thomas does. There's no editorial lines in the twelve chapters in
between, and if I may, and I'll let you intercede whenever you want.
Please, I'll talk about some of those stories or one of those stories
as many as you want, so the readers can get a flavor, because
I think when you understand the stories and you understand why Justice Thomas did what
he did, everyone that reads it will be surprised. And the one thing
I ask your listeners to do is, after they're done reading it, or
get an extra copy, whatever they want to do, give it to a
friend of theirs who's skeptical of Justice Thomas. Have them give it an honest
read. If they don't believe the book, have them go read the case.
Haven't checked the end notes, the end notes, cite all of my
sources pretty exhaustively, and then tell ask them to talk with you about Justice
Thomas and ask them if the critics are right. Yeah, I'm excited to
dig into some of these cases. And one question I wanted to ask is,
of these cases, is there one that stands out as an example of
where Justice Thomas has added to our understanding of originalism, where he has an
insight or a you know, sort of I don't mean precedent necessarily in the
legal sense, but setting is sort of a philosophical precedent for how we understand
it. Of the cases you review, is there anything that sort of fits
that, Bill, Well, I want to say all of them, but
I will say the one case to me that stood out, and maybe it's
a package of cases. It's Otis McDonald versus the City of Chicago, where
he talks about the privileges or immunities clause. And then what I'll call Brownbie
Entertainment Merchants, which is a violent video game case where he talks about parental
rights as a privilege or immunity of citizenship, and so pretty topical. But
both of those cases he's talking about religious or immunities of citizenship. He's taking
on existing Supreme Court precedent. And I think Otis McDonald captures a lot of
themes that are misrepresented and caricatured about Justice Thomas, an originalist jurisprudence. It
captures them and refuses them in one chapter. That's the kind of interesting question
about adding to originalism, which is very difficult to add to in a sense
that it's originally always where it is, but that Justice Thomas sort of comes
in and has been you would know this certainly better than I do an incredible
his contributions to the conservative legal movement and to the originalist understanding of the constitution
and the justice system, it's hard to compare. It's hard to find a
parallel for him in that sense. And what does the left get wrong?
And they're thinking about Clarence Thomas and originalism. You talked about this just a
little bit earlier, about how they assume it must be friendly to corporations,
they assume it must be friendly to everyone who wants to know what they would
call intolerant religious traditions, etc. Etc. Can you tell us a little
bit about where we see in justice Thomas's career he's really bucking that mold,
even if they're not interested enough to actually pay attention. Well, I think
one of the things that this book refuses that surprised even me, not that
it refuted the criticism, but that he did so so strongly in his own
work. So I didn't do anything other than cash or them. He's the
notion that he's a traitor to his race. If anything, the opposite is
true. In fact, if you and I went into the streets of the
city of DC and read his words and the result to ordinary people. This
is why I think ordinary people need to read this book. We need to
fix the misperception. They would be shocked that he justice Thomas is first and
foremost and originalists. They won't be shocked by that. But he is also
has a very strong voice that comes from his study of Frederick Douglas and Thomas
Soul and even a little bit of Malcolm X and so. And I think
even your listeners might be surprised by that. Let me give you a couple
examples. Let's go back to Otis McDonald for a minute, and then I
want to talk about your point about corporations. I want to talk about a
corporation's partnership with a city, a corporation that I think maybe your listeners have
heard of called Fiser corporation. Yes, very familiar. But let's start with
Otis McDonald. So Otis is the grandson of slaves. He passed ley,
but he was a remarkable man. He moves up when he's about sixteen years
old, and the chapter documents it in detail, from Louisiana to pursue a
better life, and he moves to Chicago. And when he gets to Chicago,
he decides to enlist in the army and he serves his country and then
he comes back to Chicago and on the GI Bill he gets a job as
a janitor and at night he works to get a degree. Why because he
wants to give a better life to his wife and kids than he himself had,
And he does well. He becomes the head of the union and he
moves his family to Morgan Park. Morgan Park is a suburb in the south
side of Chicago, and the book goes through in detail the crimes that he
and his family start suffering in this beautiful neighborhood that used to be nice,
but gangs and drugs move in and they crime after crime. It goes through
all six crimes and as the crimes occur, Otis is just trying to protect
himself and his family, so he puts up bars in the window. When
that doesn't work, he puts up in an alarm system. On he joins
a community group that partners with police. He becomes the head of the community
group. He gets attacked by gang members. Otis McDonald decides and attacked,
I should say, not physically, but they threaten him walk up with guns.
He gets away. Otis McDonald decides. When they find an eagle eyed
neighbor at night while they're sleeping, spots someone in their garage hiding under a
car, they call the police. The neighbor does he decides that next time,
no matter how fast, and he had a good relationship with the police,
he calls nine to one if someone's in the house, it's too late.
This vet, this man who served the country, wants a pistol and
the City of Chicago says no. He only wants it to keep at his
bedside so that he can make sure his family is safe, and the City
of Chicago says no. So Otis has the courage. He reaches out to
the Second Amendment Foundation, and he has the courage to bring a lawsuit challenging
the Chicago restriction. And the book details how it came about, and it
goes all the way to the Supreme Court, and Otis attends the grandson of
slaves trying to vindicate his Second Amendment rights, and the Supreme Court announces the
decision ultimately in a case known as McDonald versus City of Chicago, and in
that case, the majority of four justices a plurality. I'm sorry right that
he has that right under substant due process the incorporation of the Second Amendment against
the States. Justice Thomas joins the judgment to give him the critical fifth vote,
but rights separately, and he goes through the history of the Black Codes
that were passed after the Civil War to restrict African Americans from having guns.
And he goes through how one hundred and eighty thousand freedmen and others could not
possess a gun, and how Frederick Douglas pointed out the Blacks would never have
a quality without their gun rights, and he gives the history of all this,
and then he talks about the ratification of the Fourteenth Amendment and how the
purpose of the Privilegious or Immunities Clause, among other things, was to ensure
that the South could not restrict Blacks gun rights, because, as Frederick Douglas
said, they would never have a quality if they didn't have the right to
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exactly what the New York Magazine article cited was Frederick Douglas and Malcolm X cited
in this by this author saying that because Clarence Thomas purports to be, you
know, a fan or somebody who is intrigued by the logic and subscribes to
much of the argumentation of Frederick Douglas in particular, and then they cite Malcolm
X, it has to be money that's motivating him to just in so many
times, you know, rule in a way that would be amenable to Harlan
Crow and the conservative donor class. And it's just it's so easily debunked that
it's shocking. And that might be a good segue judge the part into your
point on corporations in particular too. Yeah. So if you look at the
first chapter in the book, it's about zat Kila's case, and some of
your listeners probably heard about this is the eminent domain case. What they won't
know is the backstory that's included in the book. Suzette Kilo separated with her
husband and after she was looking for a place to live and during the time
she separated and what did she find. She found a dilapidated house with a
view of the river, the Thames River, which she wanted in a blue
collar, a proud, blue collar neighborhood. And so what does Suzette do.
She she buys the house and through her blood, sweat and tears,
she rehabs the house. Not only that, she takes correspondence courses to become
a nurse to get a second job, so she can afford to fix up
the house and she makes it her own. It's beautiful. She paints it
Odessa pink. While this is going on, she hears that the Visor Corporations
moving down the street. The Fiser Corporation decides that they in partnership with the
city. The city recruits them to move in and occupy an old mill site
because they've got a new drug they think everyone in the world's gonna want.
It's called viagra. And so incomes the Visor Corporation and they say, okay,
we'll take the mill site and we'll move here. We'll put the we'll
put it set up our viagra plant here. But here's what we need.
We want an upscale mall with restaurants and apartment buildings and a park. And
visor in city decide that they're going to have to take this neighborhood through eminent
domain. And Suzette Kilo and her neighbors, like the Dairies, who had
lived there a hundred years, and every time one of their kids got married,
they loved the neighborhood so much they would buy them a house in the
neighborhood. That was their present. They fought, and they got the Institute
for Justice and Scott Bullock in particular, who had made his name in eminent
domain, and I talk about that a little bit in the book to fight
this. And this case goes all the way to the Supreme Court and Susatte
Luss five to four, and Justice Thomas writes separately, he's the only justice
on the court in this case that is willing to revisit the original meaning.
And what I would ask the critics is to go find where the reports are
as to whose invitation he accepted when he revisited the original meaning. The Institute
for Justice thought from a tactical perspective, they couldn't get five votes for the
original meaning. Now why am I talking about the original meaning? Because there's
a case out of the District of Columbia called Burman, where they change the
word public use, and Justice Thomas explains this public use means the government can
take your property to a portion of your property for a sidewalk, or to
expand a road, or for something the public will use, like even railroad
tracks which the public will use. In Burman, in the District of Columbia,
they took a neighborhood for a public purpose, and the court in that
case changed the wording. Justice Thomas said, that's inconsistent with the meaning.
You don't get to change change the wording of the Constitution. It's public use.
So back to my question, whose invitation did he accept to go back
to the public use. There was one amicust brief that stood out the naacpiece,
and they asked the court returned to the original meaning because when eminent domain
is used, it's often used to pray on the poor and minority communities.
And in fact, Justice Thomas talks about the derogatory terms that governments used to
use and outright racist terms for eminent domain, for why they did eminent domain
and what they did, and some of the shocking quotes are included in the
book. I'm not going to repeat them. On air, but your readers
should read them. They're only found in Justice Thomas's descent. And the other
thing he points out is in that Burman case, ninety seven percent. I
believe that's the statistic of the people who were kicked out of their home,
removed from their homes. We're black in being a fact for the narrative.
Yeah, it's very inconvenient for the narrative because think about a few things here.
You have the Fiser corporation, right, Justice Thomas supposed to be pro
corporation. You have a real estate case. Justice Thomas is supposed to favor
the big guy, favor the gentrification. The one justice standing at the door.
Now there were four to be fair. Of course, Justice Scalia was
in descent, and Justice Scalia asked a starting, startling question at argument.
And there's a Twitter page for the book, and we put the clip of
Justice Scalia asking this question, just because people would probably doubt it, so
the book page put the clip. If you go into Twitter and search the
People's Justice, there's all kinds of good stuff. I'm there, all kinds
of ammunition, but for your listeners to use to debate their friends about Justice
Thomas as well. As the book, but this clip, Justice Scalia asked
the lawyer for the city, So it's your argument you can take from A
and give to B if B pays more taxes. The city's lawyer says yes.
He says, wait a minute, So you mean you can take from
the poor and give to the rich. The city's lawyer says yes. Hm,
that is very very interesting and Justice Thomas. Justice Thomas and Justice Scalia
had a great relationship. Could you speak to that at all, because that
example in itself is an interesting glimpse where those two philosophies of originalism that we're
together on the bench for so long existed together. But can you speak to
sort of the interplay between Scalia and Thomas and as an insight into Thomas in
the project of kind of defining him. Yeah, I mean I think look,
as Justice Scalia would often point out Justice Thomas in Justice Scalia's mind was
the one true originalist on the court and what did he mean by that?
And I don't know if he used exactly those words, but he often jokingly
referred to himself as a faint hearted or originalist and would refer to Justice Thomas
as a pure originalist and so what did he mean? What he meant,
and it plays out in the book. Isn't Justice Scalia believed that some things
were so entrenched in our system that he wasn't going to revisit them, that
starry decisis would control. Justice Thomas has a different view of that. He
liked Justice Scalia. There's no departure here. They both trust the American people.
So why is that important? Well, Justice Scalia said, if it's
not included in the Constitution, it's not included in the laws. I trust
nine people randomly chosen out of the phone book. Then I do the nine
in this building to make the decisions that are pressing in the public today.
Now, of course he didn't mean that literally. His point was, I
trust the American people. Originalism and textualism are inherently about trusting the American people
because they passed the laws, their representatives passed the laws, and our job
is to interpret those laws, not make it up. But where they tended
to depart was on starry decisis. Justice Thomas was always willing to go back
to the original meaning no matter what, because he understood in his mind that
he trusted if the American people, if there wasn't a right in the Constitution
the American people wanted. They had multiple ways of doing it. People say,
well, we have to amend the Constitution, of course, that is
one way. The other ways are you can pass laws where do you think
Title seven comes from. Your city can pass something, your state can pass
something and so. And we're seeing that play out a little bit today.
And what that forces you to do. It forces some civic participation. It
forces you to go see your neighbor who thinks differently than you, and rather
than suing all the time, work with them to reach compromise. Justice Thomas,
I think, in my study of his jurisprudence, believes that's what the
founders envisioned. They envisioned people working together to form solutions and not people being
so divisive. And when the courts step in to an area that isn't entrusted
to them, Justice Thomas believes they're harming that balance. As you reviewed these
cases, many of which I imagine you're already familiar with, You're already very
familiar with the with Clarence Thomas. But was there anything that surprised you that
stood out as you were kind of going and doing a deep dive on this
for the book. I think there were a few things. One was,
you know, as we go up the court system in the districcord I always
said, I wrote my opinions for the losing lid again because I always looked
at them right there there, and they're entitled to an explanation. They're entitled
to know why they lost. When you get to the circuit court, in
the Supreme Court, you don't see the lid against anymore. You forget that
there's real people in front of you. And shame on me forever forgetting.
But just as Thomas never forgets when he meets with people, and I capture
some of these stories in the books, and I think the reader be interested.
When he meets with people, he treats them like they're the most important
person in the room. So I did an event with him for him.
Actually, there were multiple people at the Yale Law School. The Yale Law
School, after twenty five years, decided to honor Justice Thomas. I know
you're listeners right now are falling out of their chair. And after the event
they had a reception for him, and all these professors, even the ones
who criticized him, were there, and the students were there, and Justice
Thomas spent most of his time talking to the support staff. Then we had
a dinner that night, and he was supposed to leave that reception when everyone
left, and we were trying to get him out, and he stayed,
and he thanked every one of those support staff and took pictures with each of
them. And when he talked to them, I noticed something about him never
looking over their shoulder. He's never looking at the other people in the room.
He gives them his undivided attention. I tell that story when I go
around the country and talk and every person, or not every person, but
everyone that's met him has a story of their own. The other day I
mentioned this and a woman came up to me and said, you know what,
another woman in our church got sick and was in the hospital. Justice
Thomas barely knew her. You know what showed up when he heard about it,
Flowers. Justice Sodomyor, to her credit, said and I want to
quote it because I think it's important for your listeners to know that Justice Sodomor
said this about Justice Thomas. She said, Justice Thomas is the one justice
in the building that literally every employee's name name every one of them. He
is a man who cares deeply about the Court as an institution, about the
people who work there, about people. Now, I know Justice sodomy or
she cares deeply about people, and I may think differently than her, but
I respect and admire her for caring about people. And a person who cares
about people that says that that's especially heartfelt, right right, and that again,
this is one of the bigger questions I had about the book. When
I saw the book, I was super curious about to what extent there is
interplay between Justice Thomas's character as a jurist and the sort of definition of Clarence
Thomas as a jurist, and also the definition of Justice Thomas's character as a
person. To what excent are these two the same thing, or what do
we learn learn about one from the other. I think there's so much that
translates from Justice Thomas the person caring about people to Justice Thomas the justice.
In other words, he is an originalist first and foremost. This is why
I find all of the attacks throughout his career on him most disheartening when they
say someone else is influencing his jurisprudence, Because you can check his work.
He's an originalist. He documents all his work. Go read his opinions,
find inconsistencies, point those out. I'm sure even he would welcome them if
they exist. But he isn't ruling the way people. Why does he ruin
favor of criminal defendants? Jice School, you used to joke, why would
originalists rule in favor of criminal defendants? If the caricature is we're also pro
law enforcement. It's because the Constitution compels it. And when the Constitution compels
it, you have to as an originalist, you don't have a choice.
And so, but in every case I looked at Justice Thomas when he wrote
separately, which is when you can truly judge their jurisprudence, he always talked
about the original meaning in the cases I looked at, and then he talked
about the people involved. Let me give you one more example of unintended consequences
from what some thought was a good decision and Justice Thomas has pointed out may
have some perils that were never envisioned, which is a case called New York
Times versus Sullivan. And in that case, in the case that came to
the court, and Justice Thomas wrote separately, the court didn't take it.
A woman named Kathy McKee, who I talked to, she's a remarkable woman,
just wanted to clear her name because when she accused Bill Cosby of rape,
he and his lawyers attacked her, called her names, called her a
lawyer, she liar. She just wanted the opportunity to go to court and
prove that she was telling the truth and Cosby was lie. What case stood
in her way? New York Times versus Sellimer And why did that stand in
her way? Because they said by accusing Bill Cosby of rape in the public,
she became a public was called a limited public figure herself. Now if
here's the kicker, even she was surprised when I talked to her to tell
her. Two years later, in an unrelated case, Justice Thomas referenced Kathy
McKee again in a separate writing and he pointed out the unintended quant sequences,
and he said this Sullivan had denied McKee the right and I'm quoting now to
defend her reputation in court simply because she accused a powerful man of rape.
M that example, especially since it's relevant to what we're doing here and journalism
in general, and has sort of been a new conversation revisiting New York Times
to Sullivan, that is so interesting, Judge. The part I want to
ask why I can hear just talking to and obviously the existence of the book
is proof that you care a lot about sort of dispelling them is when it
comes to Clarence Thomas. And I think anybody who's involved in dispelling them is
about Clarence Thomas has involved in public service because it's one of the most important
American stories in our country's entire history, what he's accomplished in his lifetime.
But for you, as we're wrapping it up here, why is it so
important? Why is it something you care about so much? You know?
Why did you want to define the character of Clarence Thomas and define the man
of Clarence Thomas Like Justice Thomas, I'm an originalist and this is the greatest
country in the world. And let me just tell you a personal story about
both him and then I So, Justice Thomas grew up in rural Georgia.
His mom had earned ten dollars a week. She couldn't take care of her
two sons because she gave them to her dad, their grandfather to race and
the grandfather ruled with a ruler with a kind of iron, you know,
hand. But he knew. And this is in the book, and it's
also Justice Thomas quotes Frederick Douglas saying this. He knew education, men emancipation.
So he saved up his money so he could send a young Clarence Thomas
and his brother to a Catholic school where the nuns influence Justice Thomas. And
these influences show up in chapters two and three about vouchers in affirmative action,
and will leave those for your readers to read about. And he said,
when Justice Thomas R's brother complained, he said, old man can't. Whenever
they couldn't said I can't do anything. Old man can't is dead. And
he asked the boys, you know how I know? And they'd say how,
And he'd say, because I helped bury him. In other words,
roll up your sleeves, work hard, and you could accomplish anything in this
country. He taught Justice Thomas not to take the views of others, but
to think for himself, think through the problems that influence. Justice Thomas rose
from that to sit on the Supreme Court. My dad came over here,
he grew up in very poor circumstances in India at a time when it was
tough for a single mother. His dad passed away when he was two five
kids. She saved up to send him over he was the youngest. She
gave him a one way ticket and five dollars, and my dad made something
of himself. Every time my sister I would complain, he would say,
this is the greatest country in the world. If you can't do it here,
you can't do it anywhere. Very similar messages. We had to.
I had to roll up my sleeves and do my best. My dad wasn't
going to He was never satisfied with complaining because of the circumstances he came from.
He understood what a great opportunity this country had given him, and so
I attended his naturalization as a young boy. I now naturalize people if I
can't respect the American people and the blessings they've bestowed on me, and the
best way to respect them is to respect their laws and respect their wisdom.
That is amazing. Well, Judge Amoll the par is the author of the
People's Justice, Clarence Thomas and the constitutional stories that define him. You can
get that book. It is out right now, Judge the par Thank you
for joining us, Thank you very much for having me. Remember to the
listeners, please read it and then give it to a friend who's a crit
or get them a copy and let them read it and have a discussion with
him. Hopefully we can change hearts and minds one day at a time.
Justice Thomas is an American hero and we should recognize him as such powerful stuff.
And yeah, the more of those myths are dispelled, the more children
who grow up in the future of this country can look to the role model
that is Clarence Thomas. So it's it's such an important project. You've been
listening to another edition of The Federalist Radio Hour. I'm Emilijashnski called treaditor here
at the Federalist. We'll be back soon with more. Until then, be
lovers of freedom and anxious for the free.