1 00:00:17,920 --> 00:00:21,800 We're back with another edition of The Federalist Radio Hour. I'm Emily Drasnski, 2 00:00:21,879 --> 00:00:24,839 culture editor here at The Federalist. As always, you can email the show 3 00:00:24,839 --> 00:00:29,839 at radio at the Federalist dot com, follow us on Twitter at fdr LST. 4 00:00:30,120 --> 00:00:34,320 Make sure to subscribe wherever you download your podcasts into the premium version of 5 00:00:34,359 --> 00:00:39,359 our website as well. Today we're joined by Judge Amull thay Par. He's 6 00:00:39,399 --> 00:00:43,799 the author of the new book The People's Justice, Clarence Thomas and the Constitutional 7 00:00:43,840 --> 00:00:48,000 Stories that Defined Him. I would say a really well timed book, Judge, 8 00:00:48,039 --> 00:00:51,719 they bar Thank you so much for joining us. Yeah, thank you 9 00:00:51,759 --> 00:00:53,960 for having me. You know, Emily, it's funny you bring up well 10 00:00:54,039 --> 00:00:59,759 timed because someone asked me if I wrote it just because of this controversy, 11 00:00:59,759 --> 00:01:03,000 and I thought, boy, if I could do that, that would be 12 00:01:03,079 --> 00:01:06,319 incredible. Could you imagine if you could write a book and get a publisher 13 00:01:06,359 --> 00:01:10,519 to publish it that fast. That is what I aspired to do. See 14 00:01:10,560 --> 00:01:14,840 a controversy and get a book out in the same minute that you know, 15 00:01:14,959 --> 00:01:19,480 basically weak that a controversy exists. You know, it's it's almost as though 16 00:01:19,879 --> 00:01:23,599 you could have predicted the media would be attacking Clarence Thomas. You know, 17 00:01:23,640 --> 00:01:29,079 it's it's I know it's surprising to everybody that, Yeah, I guess after 18 00:01:29,439 --> 00:01:32,480 your point is, you could write a book anytime since he's been on the 19 00:01:32,519 --> 00:01:38,560 bench, and it would be timely because of that, although it is especially 20 00:01:38,599 --> 00:01:42,719 timely right now because there has been I think a thinly veiled, coordinated campaign 21 00:01:42,799 --> 00:01:48,120 to discredit Justice Thomas. Also Justice Alito, just this week was the subject 22 00:01:48,120 --> 00:01:53,640 of one of those fabulous pro publica deep dives into finances that he preemptively struck 23 00:01:53,680 --> 00:01:57,560 down with an op out in the journal. I mentioned that because actually, 24 00:01:57,760 --> 00:02:04,239 just yesterday a despicable piece ran in New York Magazine. It is one of 25 00:02:04,280 --> 00:02:08,159 the most reckless and pretentious and awful pieces of journalism I've read in a really 26 00:02:08,159 --> 00:02:12,120 long time. But there's a line in it that I think it's actually a 27 00:02:12,199 --> 00:02:17,159 really good place to start judge the part because it's a part where this author, 28 00:02:17,199 --> 00:02:20,400 who, by the way, I'm just going to mention I don't normally 29 00:02:20,400 --> 00:02:23,280 mention people's race or sex, but I think it's relevant here. She's a 30 00:02:23,319 --> 00:02:28,280 white woman. George Shawn graduate Carrie Hally takes it on herself to say that 31 00:02:28,599 --> 00:02:34,439 it's somewhat confounding to look at Clarence Thomas's life and then see how on the 32 00:02:34,479 --> 00:02:38,000 bench he's generally ruling in favor of his good friend Harlan Crowe. This idea 33 00:02:38,039 --> 00:02:45,319 that Clarence Thomas's ideology is inexplicable except for the fact that a white man must 34 00:02:45,319 --> 00:02:49,479 be telling him what to do. So we know how the media defines Clarence 35 00:02:49,520 --> 00:02:53,439 Thomas. In this book, you focus on different cases that give us a 36 00:02:53,479 --> 00:02:58,400 glimpse into this definition of Clarence Thomas. Can you tell us if this means 37 00:02:58,680 --> 00:03:02,120 as a place to start? Can you tell judged They about Sapara keep mixing 38 00:03:02,120 --> 00:03:07,080 it up, but you're very, very nicely fine. But can you tell 39 00:03:07,159 --> 00:03:14,000 us about why that idea that caricature of Justice Thomas as you've explored through these 40 00:03:14,039 --> 00:03:19,120 cases is utterly incorrect? Yeah, I can. So. It kind of 41 00:03:19,159 --> 00:03:23,960 starts with originalism first, which I'm sure your listeners are aware of, and 42 00:03:24,000 --> 00:03:32,840 I think too many people assume at originalism, and in fact, the critics 43 00:03:32,840 --> 00:03:38,439 have done a good job and I give them credit for maybe they don't deserve 44 00:03:38,439 --> 00:03:43,960 credit, but misrepresenting what originalism does? They say? The originalism as you 45 00:03:44,039 --> 00:03:47,280 just highlighted favors the rich over the poor, the strong over the week, 46 00:03:47,360 --> 00:03:53,159 the corporations over the consumers, and in fact, in many, many cases, 47 00:03:53,199 --> 00:03:57,719 the opposite is true. And the reason I say many and not all 48 00:03:57,919 --> 00:04:00,560 is because as an originalist, you have an obligate to follow the law wherever 49 00:04:00,599 --> 00:04:03,960 it takes you, and Justice Thomas is the epitome of that. Even when 50 00:04:04,639 --> 00:04:10,599 he disagrees with the result, he will follow the law wherever it takes them. 51 00:04:10,639 --> 00:04:15,080 Justice Leah once said, you're not a good judge if you like every 52 00:04:15,120 --> 00:04:19,120 result you reached, because you're not being a judge. But the thing this 53 00:04:19,160 --> 00:04:25,360 book highlights, the thing that's so important to highlight, is it tells the 54 00:04:25,480 --> 00:04:30,639 stories that aren't told of some very prominent cases. It tells the stories of 55 00:04:30,680 --> 00:04:34,360 the real people in front of the court. And I, in the introduction 56 00:04:34,399 --> 00:04:39,120 and conclusion, tell the reader what I think. I tell them that I 57 00:04:39,160 --> 00:04:45,120 am an originalist, so I obviously view Justice Thomas's jurisprudence very favorably. But 58 00:04:45,199 --> 00:04:51,040 in between the twelve chapters, it's about the people and what the court does 59 00:04:51,319 --> 00:04:58,639 and what Justice Thomas does. There's no editorial lines in the twelve chapters in 60 00:04:58,680 --> 00:05:03,360 between, and if I may, and I'll let you intercede whenever you want. 61 00:05:03,600 --> 00:05:09,600 Please, I'll talk about some of those stories or one of those stories 62 00:05:09,680 --> 00:05:13,439 as many as you want, so the readers can get a flavor, because 63 00:05:14,399 --> 00:05:17,839 I think when you understand the stories and you understand why Justice Thomas did what 64 00:05:17,959 --> 00:05:23,959 he did, everyone that reads it will be surprised. And the one thing 65 00:05:24,000 --> 00:05:28,319 I ask your listeners to do is, after they're done reading it, or 66 00:05:28,680 --> 00:05:30,360 get an extra copy, whatever they want to do, give it to a 67 00:05:30,399 --> 00:05:34,560 friend of theirs who's skeptical of Justice Thomas. Have them give it an honest 68 00:05:34,600 --> 00:05:38,439 read. If they don't believe the book, have them go read the case. 69 00:05:38,600 --> 00:05:42,199 Haven't checked the end notes, the end notes, cite all of my 70 00:05:42,360 --> 00:05:49,920 sources pretty exhaustively, and then tell ask them to talk with you about Justice 71 00:05:49,959 --> 00:05:55,879 Thomas and ask them if the critics are right. Yeah, I'm excited to 72 00:05:55,920 --> 00:05:59,600 dig into some of these cases. And one question I wanted to ask is, 73 00:06:00,199 --> 00:06:03,600 of these cases, is there one that stands out as an example of 74 00:06:03,600 --> 00:06:11,000 where Justice Thomas has added to our understanding of originalism, where he has an 75 00:06:11,079 --> 00:06:15,160 insight or a you know, sort of I don't mean precedent necessarily in the 76 00:06:15,240 --> 00:06:19,600 legal sense, but setting is sort of a philosophical precedent for how we understand 77 00:06:19,639 --> 00:06:24,199 it. Of the cases you review, is there anything that sort of fits 78 00:06:24,240 --> 00:06:28,959 that, Bill, Well, I want to say all of them, but 79 00:06:29,120 --> 00:06:32,120 I will say the one case to me that stood out, and maybe it's 80 00:06:32,160 --> 00:06:39,720 a package of cases. It's Otis McDonald versus the City of Chicago, where 81 00:06:39,720 --> 00:06:45,000 he talks about the privileges or immunities clause. And then what I'll call Brownbie 82 00:06:45,079 --> 00:06:49,079 Entertainment Merchants, which is a violent video game case where he talks about parental 83 00:06:49,240 --> 00:06:57,600 rights as a privilege or immunity of citizenship, and so pretty topical. But 84 00:06:58,639 --> 00:07:02,639 both of those cases he's talking about religious or immunities of citizenship. He's taking 85 00:07:02,800 --> 00:07:10,959 on existing Supreme Court precedent. And I think Otis McDonald captures a lot of 86 00:07:11,120 --> 00:07:18,079 themes that are misrepresented and caricatured about Justice Thomas, an originalist jurisprudence. It 87 00:07:18,279 --> 00:07:25,600 captures them and refuses them in one chapter. That's the kind of interesting question 88 00:07:25,639 --> 00:07:30,040 about adding to originalism, which is very difficult to add to in a sense 89 00:07:30,120 --> 00:07:36,319 that it's originally always where it is, but that Justice Thomas sort of comes 90 00:07:36,360 --> 00:07:43,399 in and has been you would know this certainly better than I do an incredible 91 00:07:44,240 --> 00:07:49,240 his contributions to the conservative legal movement and to the originalist understanding of the constitution 92 00:07:49,279 --> 00:07:55,000 and the justice system, it's hard to compare. It's hard to find a 93 00:07:55,040 --> 00:07:59,680 parallel for him in that sense. And what does the left get wrong? 94 00:08:00,000 --> 00:08:03,879 And they're thinking about Clarence Thomas and originalism. You talked about this just a 95 00:08:03,920 --> 00:08:09,279 little bit earlier, about how they assume it must be friendly to corporations, 96 00:08:09,360 --> 00:08:13,720 they assume it must be friendly to everyone who wants to know what they would 97 00:08:13,759 --> 00:08:20,040 call intolerant religious traditions, etc. Etc. Can you tell us a little 98 00:08:20,040 --> 00:08:24,360 bit about where we see in justice Thomas's career he's really bucking that mold, 99 00:08:24,439 --> 00:08:26,920 even if they're not interested enough to actually pay attention. Well, I think 100 00:08:26,959 --> 00:08:33,039 one of the things that this book refuses that surprised even me, not that 101 00:08:33,120 --> 00:08:37,879 it refuted the criticism, but that he did so so strongly in his own 102 00:08:37,919 --> 00:08:41,159 work. So I didn't do anything other than cash or them. He's the 103 00:08:41,240 --> 00:08:46,840 notion that he's a traitor to his race. If anything, the opposite is 104 00:08:46,879 --> 00:08:50,960 true. In fact, if you and I went into the streets of the 105 00:08:52,000 --> 00:08:58,480 city of DC and read his words and the result to ordinary people. This 106 00:08:58,519 --> 00:09:01,080 is why I think ordinary people need to read this book. We need to 107 00:09:01,120 --> 00:09:11,039 fix the misperception. They would be shocked that he justice Thomas is first and 108 00:09:11,080 --> 00:09:15,240 foremost and originalists. They won't be shocked by that. But he is also 109 00:09:16,159 --> 00:09:22,720 has a very strong voice that comes from his study of Frederick Douglas and Thomas 110 00:09:22,720 --> 00:09:28,159 Soul and even a little bit of Malcolm X and so. And I think 111 00:09:28,159 --> 00:09:33,360 even your listeners might be surprised by that. Let me give you a couple 112 00:09:33,480 --> 00:09:35,440 examples. Let's go back to Otis McDonald for a minute, and then I 113 00:09:35,480 --> 00:09:39,720 want to talk about your point about corporations. I want to talk about a 114 00:09:39,720 --> 00:09:45,679 corporation's partnership with a city, a corporation that I think maybe your listeners have 115 00:09:45,759 --> 00:09:52,440 heard of called Fiser corporation. Yes, very familiar. But let's start with 116 00:09:52,639 --> 00:10:00,279 Otis McDonald. So Otis is the grandson of slaves. He passed ley, 117 00:10:00,360 --> 00:10:05,399 but he was a remarkable man. He moves up when he's about sixteen years 118 00:10:05,440 --> 00:10:11,039 old, and the chapter documents it in detail, from Louisiana to pursue a 119 00:10:11,080 --> 00:10:16,240 better life, and he moves to Chicago. And when he gets to Chicago, 120 00:10:16,039 --> 00:10:24,600 he decides to enlist in the army and he serves his country and then 121 00:10:24,600 --> 00:10:31,720 he comes back to Chicago and on the GI Bill he gets a job as 122 00:10:31,759 --> 00:10:37,600 a janitor and at night he works to get a degree. Why because he 123 00:10:37,679 --> 00:10:43,600 wants to give a better life to his wife and kids than he himself had, 124 00:10:45,559 --> 00:10:48,200 And he does well. He becomes the head of the union and he 125 00:10:48,279 --> 00:10:52,399 moves his family to Morgan Park. Morgan Park is a suburb in the south 126 00:10:52,440 --> 00:11:01,480 side of Chicago, and the book goes through in detail the crimes that he 127 00:11:01,600 --> 00:11:07,080 and his family start suffering in this beautiful neighborhood that used to be nice, 128 00:11:07,159 --> 00:11:15,240 but gangs and drugs move in and they crime after crime. It goes through 129 00:11:15,320 --> 00:11:20,720 all six crimes and as the crimes occur, Otis is just trying to protect 130 00:11:20,799 --> 00:11:24,480 himself and his family, so he puts up bars in the window. When 131 00:11:24,519 --> 00:11:30,559 that doesn't work, he puts up in an alarm system. On he joins 132 00:11:30,559 --> 00:11:35,840 a community group that partners with police. He becomes the head of the community 133 00:11:35,919 --> 00:11:46,679 group. He gets attacked by gang members. Otis McDonald decides and attacked, 134 00:11:46,720 --> 00:11:50,080 I should say, not physically, but they threaten him walk up with guns. 135 00:11:50,080 --> 00:11:54,879 He gets away. Otis McDonald decides. When they find an eagle eyed 136 00:11:54,879 --> 00:12:00,799 neighbor at night while they're sleeping, spots someone in their garage hiding under a 137 00:12:00,919 --> 00:12:07,960 car, they call the police. The neighbor does he decides that next time, 138 00:12:07,919 --> 00:12:11,600 no matter how fast, and he had a good relationship with the police, 139 00:12:13,440 --> 00:12:16,679 he calls nine to one if someone's in the house, it's too late. 140 00:12:16,360 --> 00:12:22,480 This vet, this man who served the country, wants a pistol and 141 00:12:22,600 --> 00:12:28,720 the City of Chicago says no. He only wants it to keep at his 142 00:12:28,799 --> 00:12:33,960 bedside so that he can make sure his family is safe, and the City 143 00:12:33,960 --> 00:12:39,960 of Chicago says no. So Otis has the courage. He reaches out to 144 00:12:39,000 --> 00:12:48,320 the Second Amendment Foundation, and he has the courage to bring a lawsuit challenging 145 00:12:50,919 --> 00:12:56,240 the Chicago restriction. And the book details how it came about, and it 146 00:12:56,279 --> 00:13:01,519 goes all the way to the Supreme Court, and Otis attends the grandson of 147 00:13:01,600 --> 00:13:07,919 slaves trying to vindicate his Second Amendment rights, and the Supreme Court announces the 148 00:13:07,960 --> 00:13:13,639 decision ultimately in a case known as McDonald versus City of Chicago, and in 149 00:13:13,679 --> 00:13:22,360 that case, the majority of four justices a plurality. I'm sorry right that 150 00:13:22,480 --> 00:13:28,840 he has that right under substant due process the incorporation of the Second Amendment against 151 00:13:28,879 --> 00:13:33,919 the States. Justice Thomas joins the judgment to give him the critical fifth vote, 152 00:13:33,919 --> 00:13:41,320 but rights separately, and he goes through the history of the Black Codes 153 00:13:41,360 --> 00:13:48,919 that were passed after the Civil War to restrict African Americans from having guns. 154 00:13:50,639 --> 00:13:58,639 And he goes through how one hundred and eighty thousand freedmen and others could not 155 00:14:00,000 --> 00:14:11,639 possess a gun, and how Frederick Douglas pointed out the Blacks would never have 156 00:14:11,799 --> 00:14:18,480 a quality without their gun rights, and he gives the history of all this, 157 00:14:18,919 --> 00:14:26,360 and then he talks about the ratification of the Fourteenth Amendment and how the 158 00:14:26,399 --> 00:14:31,200 purpose of the Privilegious or Immunities Clause, among other things, was to ensure 159 00:14:31,480 --> 00:14:39,519 that the South could not restrict Blacks gun rights, because, as Frederick Douglas 160 00:14:39,519 --> 00:14:43,159 said, they would never have a quality if they didn't have the right to 161 00:14:43,240 --> 00:14:50,440 possess a firearm. 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That's angel dot com slash Freedom it's fascinating because actually that's 194 00:17:08,799 --> 00:17:14,759 exactly what the New York Magazine article cited was Frederick Douglas and Malcolm X cited 195 00:17:15,599 --> 00:17:19,799 in this by this author saying that because Clarence Thomas purports to be, you 196 00:17:19,880 --> 00:17:26,680 know, a fan or somebody who is intrigued by the logic and subscribes to 197 00:17:27,559 --> 00:17:32,160 much of the argumentation of Frederick Douglas in particular, and then they cite Malcolm 198 00:17:32,319 --> 00:17:37,160 X, it has to be money that's motivating him to just in so many 199 00:17:37,200 --> 00:17:41,480 times, you know, rule in a way that would be amenable to Harlan 200 00:17:41,640 --> 00:17:47,960 Crow and the conservative donor class. And it's just it's so easily debunked that 201 00:17:48,000 --> 00:17:51,960 it's shocking. And that might be a good segue judge the part into your 202 00:17:52,480 --> 00:17:57,440 point on corporations in particular too. Yeah. So if you look at the 203 00:17:57,440 --> 00:18:00,440 first chapter in the book, it's about zat Kila's case, and some of 204 00:18:00,480 --> 00:18:06,519 your listeners probably heard about this is the eminent domain case. What they won't 205 00:18:06,559 --> 00:18:12,200 know is the backstory that's included in the book. Suzette Kilo separated with her 206 00:18:12,279 --> 00:18:18,359 husband and after she was looking for a place to live and during the time 207 00:18:18,440 --> 00:18:26,119 she separated and what did she find. She found a dilapidated house with a 208 00:18:26,240 --> 00:18:30,880 view of the river, the Thames River, which she wanted in a blue 209 00:18:30,880 --> 00:18:36,680 collar, a proud, blue collar neighborhood. And so what does Suzette do. 210 00:18:37,960 --> 00:18:47,599 She she buys the house and through her blood, sweat and tears, 211 00:18:47,599 --> 00:18:51,200 she rehabs the house. Not only that, she takes correspondence courses to become 212 00:18:51,240 --> 00:18:56,200 a nurse to get a second job, so she can afford to fix up 213 00:18:56,240 --> 00:19:00,960 the house and she makes it her own. It's beautiful. She paints it 214 00:19:00,279 --> 00:19:11,279 Odessa pink. While this is going on, she hears that the Visor Corporations 215 00:19:11,319 --> 00:19:17,599 moving down the street. The Fiser Corporation decides that they in partnership with the 216 00:19:17,599 --> 00:19:22,279 city. The city recruits them to move in and occupy an old mill site 217 00:19:23,599 --> 00:19:27,599 because they've got a new drug they think everyone in the world's gonna want. 218 00:19:27,720 --> 00:19:36,680 It's called viagra. And so incomes the Visor Corporation and they say, okay, 219 00:19:36,799 --> 00:19:41,119 we'll take the mill site and we'll move here. We'll put the we'll 220 00:19:41,160 --> 00:19:47,400 put it set up our viagra plant here. But here's what we need. 221 00:19:48,519 --> 00:19:56,400 We want an upscale mall with restaurants and apartment buildings and a park. And 222 00:19:56,880 --> 00:20:03,000 visor in city decide that they're going to have to take this neighborhood through eminent 223 00:20:03,119 --> 00:20:10,640 domain. And Suzette Kilo and her neighbors, like the Dairies, who had 224 00:20:10,680 --> 00:20:14,079 lived there a hundred years, and every time one of their kids got married, 225 00:20:14,079 --> 00:20:15,799 they loved the neighborhood so much they would buy them a house in the 226 00:20:15,839 --> 00:20:22,880 neighborhood. That was their present. They fought, and they got the Institute 227 00:20:22,920 --> 00:20:27,720 for Justice and Scott Bullock in particular, who had made his name in eminent 228 00:20:27,799 --> 00:20:33,960 domain, and I talk about that a little bit in the book to fight 229 00:20:33,039 --> 00:20:40,920 this. And this case goes all the way to the Supreme Court and Susatte 230 00:20:40,960 --> 00:20:52,680 Luss five to four, and Justice Thomas writes separately, he's the only justice 231 00:20:52,759 --> 00:20:56,519 on the court in this case that is willing to revisit the original meaning. 232 00:20:57,160 --> 00:21:03,839 And what I would ask the critics is to go find where the reports are 233 00:21:03,160 --> 00:21:10,680 as to whose invitation he accepted when he revisited the original meaning. The Institute 234 00:21:10,720 --> 00:21:15,319 for Justice thought from a tactical perspective, they couldn't get five votes for the 235 00:21:15,319 --> 00:21:18,680 original meaning. Now why am I talking about the original meaning? Because there's 236 00:21:18,680 --> 00:21:23,519 a case out of the District of Columbia called Burman, where they change the 237 00:21:23,559 --> 00:21:29,480 word public use, and Justice Thomas explains this public use means the government can 238 00:21:29,519 --> 00:21:33,039 take your property to a portion of your property for a sidewalk, or to 239 00:21:33,119 --> 00:21:38,200 expand a road, or for something the public will use, like even railroad 240 00:21:38,200 --> 00:21:45,839 tracks which the public will use. In Burman, in the District of Columbia, 241 00:21:45,920 --> 00:21:52,799 they took a neighborhood for a public purpose, and the court in that 242 00:21:52,839 --> 00:21:59,200 case changed the wording. Justice Thomas said, that's inconsistent with the meaning. 243 00:21:59,240 --> 00:22:03,240 You don't get to change change the wording of the Constitution. It's public use. 244 00:22:03,799 --> 00:22:07,400 So back to my question, whose invitation did he accept to go back 245 00:22:07,440 --> 00:22:14,359 to the public use. There was one amicust brief that stood out the naacpiece, 246 00:22:15,319 --> 00:22:22,119 and they asked the court returned to the original meaning because when eminent domain 247 00:22:22,279 --> 00:22:30,079 is used, it's often used to pray on the poor and minority communities. 248 00:22:30,480 --> 00:22:37,000 And in fact, Justice Thomas talks about the derogatory terms that governments used to 249 00:22:37,119 --> 00:22:44,640 use and outright racist terms for eminent domain, for why they did eminent domain 250 00:22:44,680 --> 00:22:47,599 and what they did, and some of the shocking quotes are included in the 251 00:22:47,640 --> 00:22:51,000 book. I'm not going to repeat them. On air, but your readers 252 00:22:51,039 --> 00:22:56,640 should read them. They're only found in Justice Thomas's descent. And the other 253 00:22:56,680 --> 00:23:00,319 thing he points out is in that Burman case, ninety seven percent. I 254 00:23:00,400 --> 00:23:06,240 believe that's the statistic of the people who were kicked out of their home, 255 00:23:06,559 --> 00:23:14,000 removed from their homes. We're black in being a fact for the narrative. 256 00:23:14,519 --> 00:23:18,160 Yeah, it's very inconvenient for the narrative because think about a few things here. 257 00:23:18,960 --> 00:23:22,680 You have the Fiser corporation, right, Justice Thomas supposed to be pro 258 00:23:22,759 --> 00:23:30,200 corporation. You have a real estate case. Justice Thomas is supposed to favor 259 00:23:30,279 --> 00:23:37,640 the big guy, favor the gentrification. The one justice standing at the door. 260 00:23:37,759 --> 00:23:40,880 Now there were four to be fair. Of course, Justice Scalia was 261 00:23:40,920 --> 00:23:45,559 in descent, and Justice Scalia asked a starting, startling question at argument. 262 00:23:45,920 --> 00:23:49,359 And there's a Twitter page for the book, and we put the clip of 263 00:23:49,440 --> 00:23:55,240 Justice Scalia asking this question, just because people would probably doubt it, so 264 00:23:55,279 --> 00:23:59,079 the book page put the clip. If you go into Twitter and search the 265 00:23:59,119 --> 00:24:02,720 People's Justice, there's all kinds of good stuff. I'm there, all kinds 266 00:24:02,759 --> 00:24:08,599 of ammunition, but for your listeners to use to debate their friends about Justice 267 00:24:08,640 --> 00:24:14,960 Thomas as well. As the book, but this clip, Justice Scalia asked 268 00:24:14,960 --> 00:24:18,880 the lawyer for the city, So it's your argument you can take from A 269 00:24:19,759 --> 00:24:27,519 and give to B if B pays more taxes. The city's lawyer says yes. 270 00:24:29,799 --> 00:24:32,960 He says, wait a minute, So you mean you can take from 271 00:24:33,000 --> 00:24:41,759 the poor and give to the rich. The city's lawyer says yes. Hm, 272 00:24:41,799 --> 00:24:51,160 that is very very interesting and Justice Thomas. Justice Thomas and Justice Scalia 273 00:24:51,400 --> 00:24:55,079 had a great relationship. Could you speak to that at all, because that 274 00:24:55,160 --> 00:25:03,279 example in itself is an interesting glimpse where those two philosophies of originalism that we're 275 00:25:03,359 --> 00:25:07,960 together on the bench for so long existed together. But can you speak to 276 00:25:08,000 --> 00:25:15,960 sort of the interplay between Scalia and Thomas and as an insight into Thomas in 277 00:25:15,000 --> 00:25:18,920 the project of kind of defining him. Yeah, I mean I think look, 278 00:25:19,119 --> 00:25:26,200 as Justice Scalia would often point out Justice Thomas in Justice Scalia's mind was 279 00:25:26,200 --> 00:25:30,279 the one true originalist on the court and what did he mean by that? 280 00:25:30,359 --> 00:25:33,559 And I don't know if he used exactly those words, but he often jokingly 281 00:25:33,680 --> 00:25:40,880 referred to himself as a faint hearted or originalist and would refer to Justice Thomas 282 00:25:41,920 --> 00:25:45,920 as a pure originalist and so what did he mean? What he meant, 283 00:25:45,960 --> 00:25:52,039 and it plays out in the book. Isn't Justice Scalia believed that some things 284 00:25:52,119 --> 00:26:00,200 were so entrenched in our system that he wasn't going to revisit them, that 285 00:26:00,359 --> 00:26:04,359 starry decisis would control. Justice Thomas has a different view of that. He 286 00:26:06,160 --> 00:26:10,759 liked Justice Scalia. There's no departure here. They both trust the American people. 287 00:26:11,160 --> 00:26:14,519 So why is that important? Well, Justice Scalia said, if it's 288 00:26:14,519 --> 00:26:18,119 not included in the Constitution, it's not included in the laws. I trust 289 00:26:18,200 --> 00:26:21,759 nine people randomly chosen out of the phone book. Then I do the nine 290 00:26:21,799 --> 00:26:25,000 in this building to make the decisions that are pressing in the public today. 291 00:26:25,240 --> 00:26:27,680 Now, of course he didn't mean that literally. His point was, I 292 00:26:27,720 --> 00:26:33,359 trust the American people. Originalism and textualism are inherently about trusting the American people 293 00:26:33,839 --> 00:26:38,200 because they passed the laws, their representatives passed the laws, and our job 294 00:26:38,680 --> 00:26:45,319 is to interpret those laws, not make it up. But where they tended 295 00:26:45,359 --> 00:26:48,799 to depart was on starry decisis. Justice Thomas was always willing to go back 296 00:26:48,839 --> 00:26:56,599 to the original meaning no matter what, because he understood in his mind that 297 00:26:56,720 --> 00:27:00,400 he trusted if the American people, if there wasn't a right in the Constitution 298 00:27:00,400 --> 00:27:04,559 the American people wanted. They had multiple ways of doing it. People say, 299 00:27:04,599 --> 00:27:07,279 well, we have to amend the Constitution, of course, that is 300 00:27:07,319 --> 00:27:11,240 one way. The other ways are you can pass laws where do you think 301 00:27:11,240 --> 00:27:15,799 Title seven comes from. Your city can pass something, your state can pass 302 00:27:15,880 --> 00:27:21,240 something and so. And we're seeing that play out a little bit today. 303 00:27:21,359 --> 00:27:26,000 And what that forces you to do. It forces some civic participation. It 304 00:27:26,039 --> 00:27:29,839 forces you to go see your neighbor who thinks differently than you, and rather 305 00:27:29,920 --> 00:27:36,119 than suing all the time, work with them to reach compromise. Justice Thomas, 306 00:27:36,160 --> 00:27:41,079 I think, in my study of his jurisprudence, believes that's what the 307 00:27:41,119 --> 00:27:48,480 founders envisioned. They envisioned people working together to form solutions and not people being 308 00:27:48,519 --> 00:27:53,519 so divisive. And when the courts step in to an area that isn't entrusted 309 00:27:53,599 --> 00:28:02,920 to them, Justice Thomas believes they're harming that balance. As you reviewed these 310 00:28:02,960 --> 00:28:04,880 cases, many of which I imagine you're already familiar with, You're already very 311 00:28:04,920 --> 00:28:10,920 familiar with the with Clarence Thomas. But was there anything that surprised you that 312 00:28:10,960 --> 00:28:12,680 stood out as you were kind of going and doing a deep dive on this 313 00:28:12,759 --> 00:28:18,599 for the book. I think there were a few things. One was, 314 00:28:18,000 --> 00:28:23,039 you know, as we go up the court system in the districcord I always 315 00:28:23,039 --> 00:28:27,519 said, I wrote my opinions for the losing lid again because I always looked 316 00:28:27,519 --> 00:28:33,720 at them right there there, and they're entitled to an explanation. They're entitled 317 00:28:33,720 --> 00:28:38,640 to know why they lost. When you get to the circuit court, in 318 00:28:38,680 --> 00:28:44,440 the Supreme Court, you don't see the lid against anymore. You forget that 319 00:28:44,559 --> 00:28:49,200 there's real people in front of you. And shame on me forever forgetting. 320 00:28:51,599 --> 00:28:56,200 But just as Thomas never forgets when he meets with people, and I capture 321 00:28:56,240 --> 00:29:00,960 some of these stories in the books, and I think the reader be interested. 322 00:29:00,680 --> 00:29:04,799 When he meets with people, he treats them like they're the most important 323 00:29:06,279 --> 00:29:11,319 person in the room. So I did an event with him for him. 324 00:29:11,359 --> 00:29:15,440 Actually, there were multiple people at the Yale Law School. The Yale Law 325 00:29:15,480 --> 00:29:19,079 School, after twenty five years, decided to honor Justice Thomas. I know 326 00:29:19,119 --> 00:29:29,079 you're listeners right now are falling out of their chair. And after the event 327 00:29:29,720 --> 00:29:32,279 they had a reception for him, and all these professors, even the ones 328 00:29:32,279 --> 00:29:37,000 who criticized him, were there, and the students were there, and Justice 329 00:29:37,039 --> 00:29:41,200 Thomas spent most of his time talking to the support staff. Then we had 330 00:29:41,240 --> 00:29:45,279 a dinner that night, and he was supposed to leave that reception when everyone 331 00:29:45,359 --> 00:29:48,640 left, and we were trying to get him out, and he stayed, 332 00:29:49,240 --> 00:29:53,440 and he thanked every one of those support staff and took pictures with each of 333 00:29:53,480 --> 00:30:00,240 them. And when he talked to them, I noticed something about him never 334 00:30:00,319 --> 00:30:03,559 looking over their shoulder. He's never looking at the other people in the room. 335 00:30:03,680 --> 00:30:10,920 He gives them his undivided attention. I tell that story when I go 336 00:30:10,960 --> 00:30:15,920 around the country and talk and every person, or not every person, but 337 00:30:17,000 --> 00:30:21,440 everyone that's met him has a story of their own. The other day I 338 00:30:22,200 --> 00:30:25,519 mentioned this and a woman came up to me and said, you know what, 339 00:30:26,640 --> 00:30:30,160 another woman in our church got sick and was in the hospital. Justice 340 00:30:30,200 --> 00:30:33,519 Thomas barely knew her. You know what showed up when he heard about it, 341 00:30:33,640 --> 00:30:42,319 Flowers. Justice Sodomyor, to her credit, said and I want to 342 00:30:42,400 --> 00:30:49,319 quote it because I think it's important for your listeners to know that Justice Sodomor 343 00:30:49,480 --> 00:30:57,160 said this about Justice Thomas. She said, Justice Thomas is the one justice 344 00:30:57,160 --> 00:31:04,000 in the building that literally every employee's name name every one of them. He 345 00:31:04,119 --> 00:31:08,440 is a man who cares deeply about the Court as an institution, about the 346 00:31:08,599 --> 00:31:14,720 people who work there, about people. Now, I know Justice sodomy or 347 00:31:15,000 --> 00:31:18,440 she cares deeply about people, and I may think differently than her, but 348 00:31:18,519 --> 00:31:26,440 I respect and admire her for caring about people. And a person who cares 349 00:31:26,480 --> 00:31:33,640 about people that says that that's especially heartfelt, right right, and that again, 350 00:31:33,960 --> 00:31:37,640 this is one of the bigger questions I had about the book. When 351 00:31:37,720 --> 00:31:42,119 I saw the book, I was super curious about to what extent there is 352 00:31:42,799 --> 00:31:52,559 interplay between Justice Thomas's character as a jurist and the sort of definition of Clarence 353 00:31:52,559 --> 00:31:55,880 Thomas as a jurist, and also the definition of Justice Thomas's character as a 354 00:31:55,920 --> 00:31:59,640 person. To what excent are these two the same thing, or what do 355 00:31:59,680 --> 00:32:05,039 we learn learn about one from the other. I think there's so much that 356 00:32:05,200 --> 00:32:10,759 translates from Justice Thomas the person caring about people to Justice Thomas the justice. 357 00:32:10,920 --> 00:32:15,359 In other words, he is an originalist first and foremost. This is why 358 00:32:15,359 --> 00:32:21,839 I find all of the attacks throughout his career on him most disheartening when they 359 00:32:21,880 --> 00:32:24,880 say someone else is influencing his jurisprudence, Because you can check his work. 360 00:32:25,400 --> 00:32:30,799 He's an originalist. He documents all his work. Go read his opinions, 361 00:32:30,880 --> 00:32:36,240 find inconsistencies, point those out. I'm sure even he would welcome them if 362 00:32:36,279 --> 00:32:40,680 they exist. But he isn't ruling the way people. Why does he ruin 363 00:32:40,720 --> 00:32:44,640 favor of criminal defendants? Jice School, you used to joke, why would 364 00:32:44,640 --> 00:32:49,400 originalists rule in favor of criminal defendants? If the caricature is we're also pro 365 00:32:49,559 --> 00:32:54,960 law enforcement. It's because the Constitution compels it. And when the Constitution compels 366 00:32:54,960 --> 00:32:59,559 it, you have to as an originalist, you don't have a choice. 367 00:33:00,440 --> 00:33:08,480 And so, but in every case I looked at Justice Thomas when he wrote 368 00:33:08,599 --> 00:33:15,880 separately, which is when you can truly judge their jurisprudence, he always talked 369 00:33:15,920 --> 00:33:19,759 about the original meaning in the cases I looked at, and then he talked 370 00:33:19,799 --> 00:33:23,319 about the people involved. Let me give you one more example of unintended consequences 371 00:33:23,319 --> 00:33:29,599 from what some thought was a good decision and Justice Thomas has pointed out may 372 00:33:29,640 --> 00:33:32,960 have some perils that were never envisioned, which is a case called New York 373 00:33:34,000 --> 00:33:39,039 Times versus Sullivan. And in that case, in the case that came to 374 00:33:39,079 --> 00:33:43,160 the court, and Justice Thomas wrote separately, the court didn't take it. 375 00:33:43,559 --> 00:33:46,039 A woman named Kathy McKee, who I talked to, she's a remarkable woman, 376 00:33:46,119 --> 00:33:52,319 just wanted to clear her name because when she accused Bill Cosby of rape, 377 00:33:53,599 --> 00:33:57,799 he and his lawyers attacked her, called her names, called her a 378 00:33:57,880 --> 00:34:05,960 lawyer, she liar. She just wanted the opportunity to go to court and 379 00:34:06,119 --> 00:34:13,960 prove that she was telling the truth and Cosby was lie. What case stood 380 00:34:13,960 --> 00:34:19,519 in her way? New York Times versus Sellimer And why did that stand in 381 00:34:19,559 --> 00:34:25,119 her way? Because they said by accusing Bill Cosby of rape in the public, 382 00:34:27,239 --> 00:34:32,920 she became a public was called a limited public figure herself. Now if 383 00:34:34,639 --> 00:34:39,159 here's the kicker, even she was surprised when I talked to her to tell 384 00:34:39,199 --> 00:34:52,360 her. Two years later, in an unrelated case, Justice Thomas referenced Kathy 385 00:34:52,480 --> 00:35:00,559 McKee again in a separate writing and he pointed out the unintended quant sequences, 386 00:35:00,639 --> 00:35:07,519 and he said this Sullivan had denied McKee the right and I'm quoting now to 387 00:35:07,679 --> 00:35:14,320 defend her reputation in court simply because she accused a powerful man of rape. 388 00:35:15,440 --> 00:35:24,440 M that example, especially since it's relevant to what we're doing here and journalism 389 00:35:24,480 --> 00:35:29,679 in general, and has sort of been a new conversation revisiting New York Times 390 00:35:29,679 --> 00:35:35,880 to Sullivan, that is so interesting, Judge. The part I want to 391 00:35:35,920 --> 00:35:40,199 ask why I can hear just talking to and obviously the existence of the book 392 00:35:40,320 --> 00:35:45,039 is proof that you care a lot about sort of dispelling them is when it 393 00:35:45,079 --> 00:35:47,960 comes to Clarence Thomas. And I think anybody who's involved in dispelling them is 394 00:35:49,000 --> 00:35:52,840 about Clarence Thomas has involved in public service because it's one of the most important 395 00:35:52,840 --> 00:35:58,039 American stories in our country's entire history, what he's accomplished in his lifetime. 396 00:35:58,079 --> 00:36:01,840 But for you, as we're wrapping it up here, why is it so 397 00:36:02,280 --> 00:36:07,519 important? Why is it something you care about so much? You know? 398 00:36:07,880 --> 00:36:12,519 Why did you want to define the character of Clarence Thomas and define the man 399 00:36:12,599 --> 00:36:21,159 of Clarence Thomas Like Justice Thomas, I'm an originalist and this is the greatest 400 00:36:21,199 --> 00:36:23,639 country in the world. And let me just tell you a personal story about 401 00:36:23,679 --> 00:36:30,639 both him and then I So, Justice Thomas grew up in rural Georgia. 402 00:36:30,880 --> 00:36:37,760 His mom had earned ten dollars a week. She couldn't take care of her 403 00:36:37,800 --> 00:36:45,719 two sons because she gave them to her dad, their grandfather to race and 404 00:36:46,559 --> 00:36:51,599 the grandfather ruled with a ruler with a kind of iron, you know, 405 00:36:51,880 --> 00:36:57,320 hand. But he knew. And this is in the book, and it's 406 00:36:57,400 --> 00:37:04,400 also Justice Thomas quotes Frederick Douglas saying this. He knew education, men emancipation. 407 00:37:05,920 --> 00:37:09,079 So he saved up his money so he could send a young Clarence Thomas 408 00:37:09,079 --> 00:37:15,039 and his brother to a Catholic school where the nuns influence Justice Thomas. And 409 00:37:16,159 --> 00:37:21,800 these influences show up in chapters two and three about vouchers in affirmative action, 410 00:37:21,840 --> 00:37:28,440 and will leave those for your readers to read about. And he said, 411 00:37:29,239 --> 00:37:35,400 when Justice Thomas R's brother complained, he said, old man can't. Whenever 412 00:37:35,440 --> 00:37:38,079 they couldn't said I can't do anything. Old man can't is dead. And 413 00:37:38,159 --> 00:37:42,519 he asked the boys, you know how I know? And they'd say how, 414 00:37:43,079 --> 00:37:45,960 And he'd say, because I helped bury him. In other words, 415 00:37:46,599 --> 00:37:52,480 roll up your sleeves, work hard, and you could accomplish anything in this 416 00:37:52,559 --> 00:38:00,440 country. He taught Justice Thomas not to take the views of others, but 417 00:38:00,519 --> 00:38:09,320 to think for himself, think through the problems that influence. Justice Thomas rose 418 00:38:09,480 --> 00:38:16,280 from that to sit on the Supreme Court. My dad came over here, 419 00:38:17,719 --> 00:38:22,920 he grew up in very poor circumstances in India at a time when it was 420 00:38:22,960 --> 00:38:28,079 tough for a single mother. His dad passed away when he was two five 421 00:38:28,239 --> 00:38:31,920 kids. She saved up to send him over he was the youngest. She 422 00:38:31,920 --> 00:38:37,159 gave him a one way ticket and five dollars, and my dad made something 423 00:38:37,199 --> 00:38:43,679 of himself. Every time my sister I would complain, he would say, 424 00:38:43,800 --> 00:38:46,880 this is the greatest country in the world. If you can't do it here, 425 00:38:47,559 --> 00:38:55,480 you can't do it anywhere. Very similar messages. We had to. 426 00:38:55,639 --> 00:39:00,800 I had to roll up my sleeves and do my best. My dad wasn't 427 00:39:00,840 --> 00:39:07,679 going to He was never satisfied with complaining because of the circumstances he came from. 428 00:39:07,719 --> 00:39:13,920 He understood what a great opportunity this country had given him, and so 429 00:39:14,079 --> 00:39:25,719 I attended his naturalization as a young boy. I now naturalize people if I 430 00:39:25,760 --> 00:39:31,639 can't respect the American people and the blessings they've bestowed on me, and the 431 00:39:31,679 --> 00:39:37,679 best way to respect them is to respect their laws and respect their wisdom. 432 00:39:37,719 --> 00:39:43,039 That is amazing. Well, Judge Amoll the par is the author of the 433 00:39:43,119 --> 00:39:47,920 People's Justice, Clarence Thomas and the constitutional stories that define him. You can 434 00:39:47,920 --> 00:39:52,679 get that book. It is out right now, Judge the par Thank you 435 00:39:52,719 --> 00:39:55,280 for joining us, Thank you very much for having me. Remember to the 436 00:39:55,360 --> 00:39:59,920 listeners, please read it and then give it to a friend who's a crit 437 00:40:00,280 --> 00:40:04,760 or get them a copy and let them read it and have a discussion with 438 00:40:04,840 --> 00:40:07,440 him. Hopefully we can change hearts and minds one day at a time. 439 00:40:07,559 --> 00:40:14,000 Justice Thomas is an American hero and we should recognize him as such powerful stuff. 440 00:40:14,039 --> 00:40:16,480 And yeah, the more of those myths are dispelled, the more children 441 00:40:16,519 --> 00:40:21,880 who grow up in the future of this country can look to the role model 442 00:40:21,960 --> 00:40:24,440 that is Clarence Thomas. So it's it's such an important project. You've been 443 00:40:24,440 --> 00:40:29,199 listening to another edition of The Federalist Radio Hour. I'm Emilijashnski called treaditor here 444 00:40:29,199 --> 00:40:31,199 at the Federalist. We'll be back soon with more. Until then, be 445 00:40:31,360 --> 00:40:34,800 lovers of freedom and anxious for the free.