The following is an edited version of a speech delivered by U.S. Supreme Court Justice Clarence Thomas upon receipt of the Learned Hand Award from the Federal Bar Council during its annual Law Day dinner on May 5, 2014.
When the possibility of this evening was first mentioned to me I shrank from it, as is my wont. I certainly do not think for a moment that I am deserving of the attention not to mention the honor.
In my first months on the court, I was concerned about my rookie status. The more senior members were more than ready to calm me down. Chief Justice William Rehnquist was both wise and consistently fair. I recall telling him at lunch with a handful of our colleagues that I did not know how I fit in with them. In his characteristically blunt manner, he said: “Clarence, in your first five years you wonder how you got here. After that, you wonder how your colleagues got here.”
Justice Byron White, a wonderful man, said that it would take about five years or so to grow accustomed to the work. But, he went on to say that one did not truly arrive until one of his opinions came back to haunt him. That was not a comforting thought.
Though somewhat frail upon my arrival, Justice Lewis Powell simply advised me that the day I finally felt that I belonged at the court, I should leave. I think, in their own way, each was telling me that I would grow to be comfortable with the job and the institution, but that the more I did the work, the more the work would demand.
Those years were replete with challenges and the need to learn both quickly and thoroughly. They were the days of a larger docket that seemed like a constant stream of endless complexities. As helpful as my colleagues were, none presumed to tell me how to be a judge. It was as though each understood that it was not within his or her province to intrude upon that personal ground. Humbled by their years on the bench, none seemed to think he or she had standing or the right to tell another judge how to be a judge.
In March 1994, Gerald Gunther sent me a copy of his biography of Judge Learned Hand. Until a few weeks ago, it sat surrounded by good intentions but unread. In preparing for this evening, I took the time to read his very thorough, yet quite sympathetic biography of a man he obviously admired and for whom he clerked. It is a fascinating book about an icon of the federal judiciary. I now regret that it took me so long to get around to reading it, and so long after the passing of the author. In any event, I commend it to each of you.
Though there are many enlightening aspects of the book, Gunther’s observation that, throughout his tenure on the bench, Judge Hand constantly questioned his work and his worth stood out to me. He portrays this questioning as self-doubt. Perhaps he is right in this assessment. I don’t know and will never know. Some measure of it, however, may well be something that plagues most of the judges I know—lack of certainty that they know enough or that they are right.
Perhaps the questioning was rooted in the recognition that the more he knew, the less he was sure of what he knew. In 1958, Judge Hand delivered the Holmes Lectures at Harvard Law School. He concluded his three lectures with a quote from Benjamin Franklin: “[T]he older I grow, the more apt I am to doubt my own judgment, and to pay more respect to the judgment of others.” That leads me to two characteristics that I think the job of judging can impose over time: personal humility and judicial modesty. I use the word “impose” intentionally lest one think it a virtue rather than the condition it is.
In my youth, like so many young people, I was impetuous. My grandfather, though without formal education, had been taught by hard times, as he so often informed us. When he had had enough of my pronouncements, he would simply say in his deep voice (with an ominous tone): “You just live long enough; you will see.” In a different way, he was simply saying that more humility in my self-assessment was in order. And that, no matter, life would teach me that lesson. If I am right about Judge Hand (I know I am right about my grandfather), they are both right. (I can’t resist telling you one of my grandfather’s other pearls of wisdom. “Son, if you want to be a millionaire, buy yourself for what you are worth and sell yourself for what you think you are worth.”)
The challenges of life can be great teachers. The job of judging one’s fellow citizens is also a great teacher. Standing next to some of these colossal buildings here in New York, it is obvious and easy to recognize how small we are in comparison. That is also the case when standing next to the work we are required to do as judges. We are so small in comparison. The work, the law, the Constitution, and our country are far more important, more significant, and nobler. It doesn’t matter what happens to me; it does matter what happens to our Constitution, to our country, to our laws. As Lincoln said, for an entirely different reason, “The world will little note, nor long remember, what we say here, but it can never forget what they did here.”
In my early years on the court, I thought that perhaps as time went on, judging would get easier. Perhaps it is just me, and I am encumbered by my own inadequacies. But, the difficulty seems to increase with each passing year, no matter how much the docket has shrunk.
Knowing that I could be wrong certainly promotes an earned sense of modesty. It insists that, with each passing year, I learn more and think more deeply about the unquestioned assumptions, the litany of citations, methodologies and theories. Whether it is the time value of a loan, the fraud on the market theory in a 10b-5 action, or the dormant commerce clause, we are compelled to try to understand what we have done, what we are doing and what the implications are.
For some years, I have told my law clerks, whom I warned before they signed on, that we should look at each case like a train car. Before attaching another car to the train of precedents, I am required to know as much as possible about that train. Where is it headed? What is already in the attached cars? Who is the operator? What if it is headed in the wrong direction? Why is it here? If we don’t look, we have no idea who is driving it. And for all we know, an orangutan could occupy the driver’s seat. No, we are compelled by our oath and our consciences to look.
I do not dismiss the notion that some of this may just be intellectual curiosity. However, some of the cases that require the most inspection cannot be accused of stimulating that curiosity. No, there is more. Knowing more often has the paradoxical, if not counterintuitive effect, of magnifying the sense that one knows less than required or at least too little. I am not speaking of merely understanding the complexities of the case before us; that is quite manageable. There is more. We cannot be content to wear blinders or green eyeshades when we do our work. There is much that has come before that must be understood and much that has to be anticipated. We have to look back at the long train of cases and jurisprudence as well as ahead to get a better sense of where we are headed.
Just reading Gunther’s biography of Judge Hand, it seems quite clear that Judge Hand felt compelled to dig beyond the surface in cases. Yet, he had, according to Gunther, “a skepticism about the utility of abstract guidelines.” Such abstraction can often gain a life of its own, different, if not separate, from reality. In addition, going beyond the surface can lead to surprises, if not even more uncertainty.
One of the most common reactions from my law clerks (and the many students I have been fortunate to have in classes) is just how straightforward and practical the reality is. As esoteric and theoretical as we have made so much our work, the initial problems were very often practical and down to earth. Somehow these practical origins are interred by our understandable tendency to distill propositions, discern patterns and generate theories. As the years pass and with each successive use, these are compounded and multiplied until the practical origins are totally buried.
One example that predates our country and our legal system is Magna Carta. As we celebrate the 800th anniversary of Magna Carta this June, it is easy to assume that Magna Carta (I refer to the first but there were a number of them) was some lofty, esoteric document. One need only read it to see that, like virtually all of Anglo-American law, it is rooted in practical, day-to-day realities.
It is understandable that we are more likely to think of the sweeping phrase, “law of the land,” when we hear of Magna Carta. But, that abstraction was just a small part of a document that largely addressed the daily lives of the barons and their subjects under the rule of King John, who, by all accounts, was quite abusive. They forced his hand, and he signed Magna Carta at Runnymede, essentially a meadow. It covered subjects ranging from intestacy and dower rights, to uniform measurements of wine and ale, to prohibiting constables from “tak[ing] corn or other chattels of any man without immediate payment” (an early safeguard against takings). Such provisions were not the product of theoretical musings, but practical demands rooted in daily experience. That tradition continued through the grievances of our founding generation to the Declaration of Independence and our Constitution. It continues to this day. Due process, equal protection, just compensation, and representative government to name a few examples!
From the very distant Magna Carta, let’s take a look at the oft overlooked Third Amendment to our Constitution prohibiting the quartering of soldiers without the consent of the homeowner. It may seem too obvious to even mention that the government generally has no right to force us to house soldiers in our homes. But there was a long history in England of requiring homeowners to quarter troops, and American settlers were repeatedly required to quarter British troops in the decades before the American Revolution. During the French and Indian War (1754-1763), for example, thousands of British troops arrived in the Colonies and demanded accommodations in private homes. In 1765, the British Parliament passed the Quartering Act, requiring the colonists to bear the cost of providing barracks and supplies for the British soldiers. (By the way, it was to raise money to support these soldiers that Parliament passed the hated Stamp Act of 1765. But taxation without representation is a story for a different day.) These experiences inflamed the colonists and led to the inclusion of the Third Amendment, which effectively abolished the practice of quartering of troops.
That leads me to my final example. Here a simple problem led to dramatic changes in an area of the law very different from the case that was decided. But, a little background first.
One of the many good fortunes that I have is the opportunity to teach a semester-long course at George Washington University Law School with one of my former law clerks. The idea behind the course is to look behind Supreme Court cases that we cite for various propositions. We require the students to lead the class of 20 students. This gives them a stake in the class, makes it interactive and avoids any concerns that they are yet again being pulled or tugged toward certain conclusions.
They are also required to choose a Supreme Court case that predates my tenure on the court and write a paper about what the case was actually about as opposed to precedential value or propositions for which it has come to be known. One of the students chose Trop v. Dulles. Trop was a soldier during WWII. He was court martialed and convicted of desertion in time of war. He was dishonorably discharged from the Army. Under the Nationality Act of 1940, a collateral consequence of his conviction was loss of citizenship. He moved from his native Ohio to Long Island. Some years later, he applied for a passport, possibly to go to Canada on business, since he worked for Air France. He was not eligible for a passport since he was no longer a citizen. He brought suit and argued that Congress did not have the power to expatriate a citizen.
The same day that Trop v. Dulles was handed down, the court also handed down another case, Perez v. Brownell, involving loss of citizenship under a different provision in the Nationality Act. Both cases were decided by 5-4 votes, but with different outcomes. In Perez, the court upheld the provision taking away Perez’s citizenship. Chief Justice Earl Warren, who authored the plurality opinion in Trop (coming out the other way), dissented in Perez. Justice William Brennan was the swing vote. He was the fifth vote in both cases though they came out in opposite directions. He concurred in the judgment in Trop. So, there is no majority opinion, just a majority for the judgment. Chief Justice Warren’s primary argument was a replay of his dissent in the Perez case with which Justice Brennan did not agree. But, he added an Eighth Amendment argument.
No party had argued this in the lower courts, but Second Circuit Chief Judge Edward Clark had made an Eighth Amendment argument in his circuit dissent. The Chief Justice wrote that divesting Trop of his citizenship was punishment that was contrary to the “evolving standards of decency,” and thus violated the Eighth Amendment. This notion has become a centerpiece of our Eighth Amendment jurisprudence. Ironically, Justice Brennan would change his mind and vote to overrule Perez nine years later. Had he taken that position initially, there would have been no need for the second part of Chief Justice Warren’s opinion and the concept of “evolving standards of decency” that dominates our Eighth Amendment jurisprudence would not have been necessary.
Trop did not set out to affect our Eighth Amendment jurisprudence. He just wanted his citizenship in order to get a passport. He got that, but he also changed, perhaps permanently, our Eighth Amendment jurisprudence. I am certain none of the justices or lawyers thought at the time that “evolving standards of decency” would revolutionize our Eighth Amendment jurisprudence. Its precedential role far exceeds its rather modest (if not humble) origins.
Knowing that this concept was not intended to extend as far as it has today does not instill confidence in other widely accepted concepts, no matter how routinely or reflexively used If anything, it should counsel us not to take it for granted that someone gave great thought to the implications of their tests or turns of phrase. They cannot and must not go unexamined or unchallenged. Not only are we not sure that we are right, we are not sure of the propositions or the cited precedents. And, whether they are right requires more than merely being repeatedly cited. I acknowledge my own fallibility as well as that of those who have occupied and now occupy the bench. None of us has the gospel, just opinions.
In May 1944, at a huge naturalization ceremony in Central Park (150,000 new citizens were sworn in), Judge Hand spoke briefly but eloquently. In fact, many compared the brevity and quality of his speech to the Gettysburg Address. His words certainly capture my sense:
“What then is the spirit of liberty? I cannot define it; I can only tell you my own faith. The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the minds of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias; the spirit of liberty remembers that not even a sparrow falls to earth unheeded; the spirit of liberty is the spirit of Him who, near two thousand years ago, taught mankind that lesson it has never learned, but has never quite forgotten; that there may be a kingdom where the least shall be heard and considered side by side with the greatest.”
As we celebrate law day, should not this be our spirit, certainly as judges, but also as lawyers and as citizens. To this, I only add my heartfelt gratitude for this honor, named after a man who deservedly is an icon of the federal judiciary but who knew he could be wrong. If one of the greatest among us sees fit to be humble and modest, then, we are most certainly counseled by his example to do likewise. Perhaps, that can be our law day resolution.