BOND: You’ve written about the destructiveness of slavery, segregation, talked about the damage done. Can the playing field be leveled by — and if — and can government level the playing field, and can it do so without breeding the kind of dependency that you’ve also talked about?

THOMAS: Boy, that’s the hard one. And, you know, that’s the one that has you pacing at two in the morning and worrying about it and certainly when I was in a policy-making role, I always worried about that endlessly — how far can you go without your solution becoming as harmful as what you thought the problem was? And my grandfather — isn’t it fascinating? He used to go off in the woods early in the morning and come back later and he never had anything. He didn’t kill anything. You know, he had his gun across his shoulder and he’d just come back and then he’d go and have breakfast and he said he was just thinking. And these were the same problems he was thinking about — how do you help without hurting? But I do think — I think we sometimes ask the wrong questions. There’s a lot of harm that, you know, whether it’s a broken family, it’s crime, it’s habits, it’s just negative influences that are devastating, and I remember trying to talk quite a bit about this when I was at EEOC. I don’t talk as much about it now, but I do think that when you create these headwinds that prevent people based on race from accomplishing things that government has to cease that, that you have to rectify that, you have to remedy that. And we attempted to do it in specific areas when I was at EEOC. I don’t know far you can go and how global you can make that without running into constitutional limitations. And I also don’t know how far you can go doing that without creating or causing additional harms.

Let me give an example. I can remember when I was at the Department of Education — I write about this in the book — that the effort when we were in-was to certainly desegregate the universities in the South, but one of the other efforts as sort of a corollary to that was to basically desegregate the black colleges and if not, there was sort of this subliminal or this implicit argument that they had to be eliminated, like Savannah State or — not — Langston University, for example, the smaller ones. And I thought, "Why would you do that to rectify a problem?"

A further example of that is my high school — St. Pius X High School in Savannah which churned out all these wonderful kids. The first 98th and 99th percentiles I ever saw on the PSATs, for example, were there in an all-black high school. Well, that was closed in 1973 because of what the experts said, in part, "the social situation," that is, it was all black. To me, the remedy became worse than — first of all, I saw nothing wrong with this, but that’s sort of an absurd application of a remedy. But I don’t know. I don’t know how far you go. The Constitution has very strict limits, in my opinion, on the use of race and sex categories. It says citizenship and person, and I think we have to be very careful that we’re not locking in precedents that in the long run will do greater harm.

BOND: A justice, and I can’t remember who, said years ago, “If you want to get beyond race, you have to go to race.”

THOMAS: That was Justice [Harry] Blackmun.

BOND: Okay.

THOMAS: I don’t know what that means.

BOND: I think it means that you can’t talk about remedies to race, unless those remedies have some race consciousness in them.

THOMAS: Yeah, I don't know still. You know, I’ve read that and read it and re-read it and I don’t know. I mean, that’s — how do you get wet? In order to be dry, you must be wet. I don’t know that. I don’t understand that. I don’t know how you can have — that's just — but at any rate —

BOND: Well, there was a great case which I know a little bit about, Paradise v. Alabama, a state trooper case involving the exclusion of blacks from the state trooper ranks and the case went through several, several rulings in which courts ordered Alabama to do this and Alabama just wouldn’t do it every time, and finally, after I think three higher court decisions said to Alabama, "You will hire one black state trooper for every white state trooper you hire."

THOMAS: Imposed a quota.

BOND: Imposed a quota which is anathema to many people. So I think that’s what it means, and here’s an instance where in order to get beyond race, you had to go to race as a remedy.

THOMAS: Well, I think sometimes when you have a specific case, you have a class action, for example, and I assume that was a class action.

BOND: Yes, I think it was.

THOMAS: The remedy, I mean, the courts have imposed specific remedies for that. Now, you or I might disagree with the remedy, but if somebody’s foot-dragging, sometimes the remedy has to be very firm and clear-cut. Now, that’s not global. That’s in this specific case.

BOND: Right, just this case.

THOMAS: Yeah, and it’s just saying this — because, now let’s say they had been cooperative and gone on and done what they were supposed to do. It might be that — that may have been inappropriate. Now, I don’t have the answers for all these cases. I tend to be very reticent to having lived in a race-conscious environment where we were actually excluded because of race to now say somehow I’m comfortable that counting by race. Now, I think that that’s — I think that we can build into that Constitution certain exclusions that will come back to haunt us.