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Why Justice Clarence Thomas worries about the future of the U.S. Supreme Court

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Associate Justice Clarence Thomas sits during a group photo at the Supreme Court in Washington.

Associate Justice Clarence Thomas sits during a group photo at the Supreme Court in Washington on Friday, April 23, 2021. Polarization, incivility and anger permeating American society could eventually undermine the U.S. Supreme Court and other government institutions, Thomas said, speaking in Utah Friday.

Erin Schaff, The New York Times via AP

Polarization, incivility and anger permeating American society could eventually undermine the U.S. Supreme Court and other government institutions, Justice Clarence Thomas said, speaking in Utah Friday.

“You can cavalierly talk about packing the court. You can cavalierly talk about doing this and doing that. At some point, the institutions are going to be compromised,” he said.

People should at least be honest that it’s really about results that they want and that they haven’t been able to make the institution do what they wanted to do or give them what they want when they want it, Thomas said.

“That’s no court at all. That’s no rule of law at all. That’s just willfulness,” he said “I don’t see how that is conducive to having a free and civil society.”

The Orrin G. Hatch Foundation hosted Thomas in Salt Lake City for a discussion that covered a wide variety of topics including his judicial philosophy, experience on the Supreme Court and growing up in poverty in rural Georgia. About 500 people attended the $150-per-person event at the Grand America Hotel.

President Dallin H. Oaks, of the First Presidency of The Church of Jesus Christ of Latter-day Saints, introduced Thomas. President Oaks served on the Utah Supreme Court in the early 1980s.

During his long tenure on the Supreme Court, Thomas has displayed courage in the face of adversity and strong opposition as he has persisted in insisting on the text of the Constitution, even when it leads to results that might not be politically popular, President Oaks said.

Utah Supreme Court Associate Chief Justice Tom Lee, who clerked for Thomas in the mid-1990s, moderated the discussion. Lee announced his retirement earlier this year, effective July 31. Thomas administered the oath of office to Lee in 2010. Lee was on former President Donald Trump’s short list of potential U.S. Supreme Court nominees.

Lee said he saw his role Friday as “get the heck out of the way and let the man speak.”

Hatch did not attend the event, but Thomas said he spent most of Friday afternoon with the 87-year-old retired senator. Thomas said people don’t realize Hatch started fighting for him in 1981 when he was nominated for a position in the U.S. Department of Education and “came to my defense” through his confirmation to the Supreme Court in 1991.

“I can say without doubt, but for him, I wouldn’t be here,” Thomas said.

Hatch was one of Thomas’ most ardent defenders during his contentious Senate confirmation hearings. Anita Hill accused Thomas of sexually harassing her in two government jobs. She testified before the Senate Judiciary Committee for eight hours before the panel, and ultimately the full Senate, confirmed Thomas.

Thomas, 73, the longest-serving member of the current court — and its only Black member — is known for writing more concurring opinions or dissents than any other justice. He is among six conservatives on the court.

Thomas said he’s worried what chipping away at the Supreme Court and government institutions will mean for future generations.

“My fear isn’t for me. But it is for your kids and your grandkids and the next generation. What are we going to leave them? Are we leaving them a mess or are we leaving them a country? Are we leaving them chaos or are we going to leave them a court?” he said.

Thomas said he no longer likes going on university campuses because it’s “not fun.” Colleges used to be places where people exchanged ideas and debated those they disagreed with but remained friends.

“Now it’s people who actually seem quite full of themselves,” he said. “Now it’s sort of this animus develops if you disagree.”

People who are anti-abortion or believe in traditional families can’t state their views without antagonism, so they say nothing, Thomas said

“If you can’t do it on a university campus, where do you learn civility? Where do you learn to disagree without being disagreeable?” he said. “I’m afraid that we have, particularly in this world of cancel culture and attack, I don’t know where you’re going to learn to engage as we did when I grew up.”

If people don’t learn civility in schools or neighborhoods, they won’t carry it into legislatures or courts, Thomas said. People then resort to tribalism and screaming and yelling at each other, he said.

Thomas said he’s worried that the country is in the process of destroying the very things that make it a free society.

“Some genius said the other day that the Constitution was trash. I mean, that took a lot of thinking. You just don’t even cavalierly say that, someone who’s contributed zilch but hot air,” he said.

Comments like that, he said, get more play on social media than someone saying they love the country though it isn’t perfect, but it’s perfectable.

Thomas said his law clerks recently told him there’s a problem with him because he has “conservative white ideas.”

“That’s really interesting. I didn’t know that there were these particular ideas that were off limits — you get like white-only water fountains, now you get white-only ideas. The more things change the more they remain the same,” he said.

Known as a textualist, Thomas stresses the original meaning of the Constitution.

“I think if it is written, we should interpret it as written, not as we would want it,” he said.

Thomas said he starts from the belief that he has no right to judge anyone.

“I can’t come up with a squishy theory. I can’t come up with something that’ll give me broad discretion to judge you. I can’t come up with something that allows me to make up the law. It’s got to be there. It’s got to be clear. And so, think, what’s clearer than the actual words of the law?” he said.

Thomas said he and fellow conservative the late Justice Antonin Scalia called it “judicial modesty.” He said there must be authority to judge.

“And that’s the same thing you ask of the government,” he said. “By what authority do they intrude upon your life? By what authority do they regulate you? By what authority do they take your property?”

The COVID-19 pandemic has changed the way the Supreme Court approaches oral arguments, said Thomas, who is known to rarely ask questions in that setting. For a time, he said, arguments were conducted by telephone making them much more orderly because participants were taken in sequence.

The justices have agreed to follow a similar version of that when they returned to the courtroom, he said. Thomas said he didn’t like the “sort of free-for-all” in the past where they were interrupting each other and the attorneys making their cases, calling it “unseemly” and unproductive.

Now, the court is allowing attorneys to make complete arguments, he said.

“I think we actually learn more from each other. We treat each other better as a result of it,” Thomas said. “In the end, I think what is most important is that the arguments are actually contributing to the process of deciding the case as opposed to what I would consider almost like a cat fight in the past.”