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The Truth-Seeking Effort at the Court
BOND: But don’t you believe that in Plessy, in that dissent and in your work today, that part of what you do here is to try to convince your colleagues that what you think is the correct way to go as opposed to what they may think [is] something different, that you try to achieve through this collegial conversations that you have and through the writings of your opinions that they should join you, they should sign on with you. I mean, there has to be a lot of that going on here.
THOMAS: It happens in specific cases and it also happens over a common tenure that we have. Justice White said when I got here that what matters now is what happens, what you do here. This is sort of — this is an intramural institution in that sense. The members of the Court, in a sort of professional way, live with each other. It’s a family. There’s a sense of knowledge of each other, an intimacy with each other that is unusual in organizations. We’re not fighting for promotion or the corner office or anything. It’s all about the work. So the relationships do matter, and up here, one of the things that really matters is your credibility with your colleagues, your honesty with them, how you treat them, how they respect you and you respect them. And I remember I got a note once from one of my colleagues — I’m not going to give the name, but it’s not Justice [Antonin] Scalia — saying that “you’re a wonderful colleague.” I understood what that meant and that might — the feelings were mutual, and we don’t often agree, but it has to do with respecting. It’s called mutual respect. I respect my colleagues’ right to disagree with me at any time and they in turn respect mine. And you earn that from them, so it’s the credibility that then becomes the engine to be able to persuade them because they know that you’re not playing games, you’re not twisting or shading, that it is about the integrity of the body of your work and your thinking that’s important. And there are times — again, it’s purely intramural — when that changes minds, when they know they can read what you have written and they know that that’s precisely what you think. There’s no ulterior motive, no distant agenda. It’s about these cases. So, yes, it does matter but I don’t think it’s like a tactical writing of an opinion. It’s a body of work and a body of the way you conduct yourself up here.
BOND: A case comes before the Court and involves some issue that you feel strongly on, and you want to take X approach and you find that your colleague Y wants to take the other approach, and there has to be some back and forth between you where he’s trying to bring you to his side or her side and you’re trying to bring them to yours. That must occur.
THOMAS: Well, and not probably as much as you think. We’ve been here a long time.
BOND: Right. But I’m not going to say — if I were here, and I’ll never be here, I’m not going to say, "Clarence Thomas won’t go for this." I’m going to say, "I can to bring Clarence Thomas over here."
THOMAS: You could bring — I could bring you along a little and you could bring me along. There’ll be some common ground, but at some point, if you have an approach that’s fundamentally different from my approach —
THOMAS: — we’re not going to coincide. If you decide to drive northeast and I decide to drive north, yes, we’re both driving north, but we’re not driving together toward each other, so I mean — but you learn how to live with that, but what happens over time is that sometimes we see, well, maybe you have a point, not in this specific case, but over a body of cases and you tug each a little, so we’re sort of not necessarily heading in the same direction but we’re heading closer, in a closer direction. Does that make sense to you?
THOMAS: And the — but I think what’s crucial up here is there’re no gimmicks, there’s no marketing, there’s no self-promotion. We know each other. We sit in the conferences. We hear each other. We look at the drafts. We talk to each other and so it always — you put all your cards on the table face up. For example, if I’m drafting an opinion and I send that — that draft goes around to all eight of the other members of the Court. It doesn’t just go to one or two. If I disagree about something, the way it happens is that I write a letter. For example, “Dear Ruth” — that’s to Justice Ginsburg — “I don’t agree with your reasoning in this opinion for these reasons.” And Justice White used to end his opinion, his letters, by saying, “Cheers, Byron,” but it’s always warm, friendly, cordial, like that, and then she might say, “I’ll make some adjustments to accommodate your point of view,” but so it’s all constant back and forth and over time —we’ve been together now fifteen years — so over that time, we have to learn how to respect and work with each other.
BOND: And in their individual ways, each of these, your colleagues, is exhibiting some kind of leadership, trying to steer these, maybe these parallel courses to become closer and closer and you and all of them engage in this I would guess fairly routinely.
THOMAS: Every day and every case but, see, what’s — the thing that’s really interesting up here and this goes back to the process of education, to the truth-seeking effort — it’s really hard. I’ve often said this job is only easy for people who already have the answer before they start or for people who only have one point of view or no authority to make any decisions. For the rest of us, it’s really hard, because what you’re trying to do is to find the right answer that is not right just because you feel it’s right. It’s not just your personal opinion. That’s easy. The hard part is what is the right answer under this document or this statute? And that’s a little harder. And I think my colleagues — Justice [Lewis F.] Powell said when I first arrived here, he said that “when you reach a point when you think you belong here, it’s time for you to leave.” So, the process counsels some humility that is a lot harder than looking at a bottom line and saying, "I agree or disagree."
BOND: In your years here, and I know you probably don’t like to talk about individual cases, but has your search for truth in a case taken you to a place that surprised you?
THOMAS: Yes, many cases. It takes me in places that are not necessarily consistent with my personal opinions as a reaction to things. What I do with my clerks — you saw one young man come in here a minute ago. He’s one of my current clerks. I tell them up front what my initial reaction is, what my instincts, what my feelings are, and tell them to watch me the way we watched my grandmother, grandfather, when that lady came up. “You watch me and you make sure that I do not put that in that opinion. Do not allow me to do that.” And there’s a discipline just like he had to have a discipline, I have to have a discipline, because the interesting thing is that these opinions have a long life, shelf life, and just like Plessy had a long and unfortunate shelf life. That opinion did not have to be written that way, and it could’ve been written in the right way so easily. So — but at any rate, I try to not allow my personal views to drift into the opinions, except in the appropriate way with respect to jurisprudence.