The Rising Influence of Supreme Court Justice Clarence Thomas

I see health care as probably the greatest opportunity for AI systems to be useful in lifting humanity up. That's Greg Carrotto, Ph.D., distinguished scientist and senior research director at Google. At the break, join him and his colleagues to learn about Project Ame, an innovative collaboration between Google and Beth Israel Deaconess Medical Center designed to improve the natural flow of information from patient to physician. Can we build an intelligence system that supports conversational interactions? From the opinion pages of the Wall Street Journal, this is Potomac Watch. Clarence Thomas this week becomes the second longest serving Supreme Court justice. Confirmed by the Senate in 1991, he has now served more than 34 years. Only William O. Douglas served longer, and Clarence Thomas will surpass Douglas in May of 2028 if he remains on the court. His influence on the Supreme Court is, if anything, increasing these days. And we'll talk about that. Also, what's with the increasingly testy exchanges between some of the justices on the court these days? Welcome to Potomac Watch. I'm Paul Giego with the Wall Street Journal. And our subjects today are Clarence Thomas, his influence on the court. And we have the ideal guest, John Yoo. Professor of Berkeley Law and a former clerk to Clarence Thomas and Legal Eagle who's watched the Supreme Court over the years in Clarence Thomas in particular. Welcome, John. Good to talk to you again. Great to you with you, Paul. Just give me a sense overall of what you think of this longevity milestone by the Justice. It's certainly notable. Not to date myself, but I first met him the very first year he was on the court. in 1991 to 92 when I interviewed with him for a job. It was actually the very day that the court announced Casey versus Planned Parenthood, which upheld Roe versus Wade. And then I'm lucky to say I was just with him here at the University of Texas just a few weeks ago when he gave, I think, a stirring address on the Declaration of Independence and its inconsistency with progressive government, which you excerpted, I think, a really important passage on your pages. And the two things I think that you could look back over that time that strike me when I was thinking back to meeting him back in 1992 to today is he hasn't changed that much. In his speech, and back then when I talk with him, he has wrestled with this question, how do you reconcile the promise of the Declaration of Independence, the promise that we're all created equal, that we have rights that come before government. How do you reconcile that? with this massive government we have today. And you can see his career over time has been an effort to defend individual rights, which he thinks are based on natural law, at the same time to continuously cut back on the power of this progressive government that was introduced by Woodrow Wilson over 100 years ago. And in this speech, he laid out that he still has more days to come, a broader agenda that he wants to achieve.

in that direction. So just on the point of longevity, I covered the Thomas confirmation, the hearings, which were so ugly. And I remember talking to him after it was done, and he was confirmed. And he said to me, they're going to have to live with me for a long, long time on the court. And that has turned out to be true. I want to get into the declaration stuff a little bit later. But how would you describe his jurisprudence? I mean, he's often called an originalist. I think that's fair. And I think, you know, in fairly strict one, in a way that some of the other justices who are called originalists and in some ways are, are not quite as strict, maybe more pragmatic. You think that's fair? I think it's very fair. And we don't have to trust our own judgments. Justice Scalia, probably the first originalist on the modern court said something during an interview like this. They said, well, Justice Scalia, aren't you an originalist? And he said, yes. He said, but I'm not a crazy originalist like Clarence Thomas. And I think the reason for that is, and why I think Thomas is the most stalwart originalist, is that he doesn't give much of any way to precedent to the idea that even if the original understanding meant A, if the court over 100 years had done B, Well, maybe we should stick with B because that's just the way the government has operated for so long. And this goes, I think, to his jurisprudence, too, is he's very, I think, motivated and formed by the idea that the Supreme Court in Plessy v. Ferguson or the Supreme Court in Dred Scott upheld the subordination of blacks in this country in what he thinks is a violation of the Constitution and the Declaration. So. as a justice, he would say, I would never have voted to stick with a precedent like Plusy or stick with a precedent like Dred Scott. We always have to go back to the original meaning of the Constitution. I think that separates him from even a Justice John Roberts, who has called himself an originalist or Brett Kavanaugh, even some of the liberal justices like Elena Kagan or Jackson have testified during the confirmation hearings. We're textualists now or we're all originalists. But Thomas doesn't. I think of all those justices balance precedent or balance the opinion of the government against originalism. He always goes for, let's do what the framers understood the Constitution to me. Yeah, you make a really interesting point about Plessy. If you read the justice's opinions and speeches over the years. Plus, he had a huge impact on him. I think it was 1896 case in which the separate but equal doctrine was laid out by the court and endorsed. And Justice Harlan, the first Justice Harlan, was the lone dissenter. And Clarence Thomas has often pointed to Harlan as an example of proper judging and something of a hero to him. I want to talk about this difference on originalism in a particular case here.

And I don't think Thomas is interested whether he gets five votes in the end today. He's interested in whether he gets five votes 30 years from now. A really interesting point. We're going to take a break. And when we come back, we'll talk about what else might be on Clarence Thomas's judicial agenda in the coming years when we come back. Earlier, Google's senior research director Greg Corrado spoke about Project Ami, an AI-driven voice technology. The idea is to find a setting where AI is genuinely helping a clinician in a conversational interaction that involves patients. And the first area that we wanted to explore is patient intake when you're first getting information about the medical situation in front of you. The research is critical, Carrado says, because more comprehensive intake frees physicians to spend more time with patients. It's not meant to be flashy. It's meant to be... foundational. I'm Matthew Hennessy, the editor of Free Expression, the new daily newsletter from the opinion pages of the Wall Street Journal. Free expression is a little different than what you get in the print paper's opinion section. We've expanded things out a little bit. We have a great mix of columnists, including Matt Continetti, Louise Perry, and Kyle Smith. You also get frequent sharp contributions from my editorial colleagues. And we publish outside contributors, too, from rock star economists like Tom Sol to real rock stars like John Androsic and David Drayman. You can sign up for free expression by going to the journal's homepage and looking for the free expression tab. We're also on substack. Twitter, Instagram, threads, and TikTok, if that's your sort of thing. Sign up for free expression today, and we'll see you in your inbox tomorrow. Welcome back. I'm Paul Giego here in Potomac Watch with Berkeley law professor and former clerk to Justice Clarence Thomas, John Yoo. I wrote a column as it happened when Clarence Thomas, I was writing a column for the journal then. I wrote a political column on Clarence Thomas's concurrence in Holder v. Hall because it was relatively early in his Supreme Court tenure. And we're all looking for, okay, hints of how he was going to come out, how he was going to judge. And I thought it was highly significant as an indicator. He stepped out in a big way in that concurrence. I mean, he really went out there and he did this historical analysis of the Constitution and treatment on race and the various amendments. And great detail. He wouldn't have to do that normally in a concurrence. But he was laying down a marker for the future. And occurred to me when I saw Louisiana versus Clay. that his ship has come in. I mean, he's been long enough on the court, and the court itself has changed, obviously, injustices in a major way, in which the court has come over to him. When you think about it, it has to be enormously gratifying to him, but it's an indication of the influence he's had. It's not just voting rights, Paul, it's affirmative action in schools, right? The Harvard case saying the government-funded schools.

and government-owned schools can no longer use race and emissions. That's been an issue he cared about long before he was even on the bench. He said gun rights, Bruin. He wrote an opinion years ago saying, why do we treat the Second Amendment like a second-class right? Eventually, the Supreme Court came around to recognize the individual right to bear arms. He's got other opinions. I think of them as ticking time bombs where he's done the same thing, said, He's questioned whether administrative agencies can be independent. He wrote opinions about that 20 years ago. We may see this summer next month the court strike down the independence of the Federal Trade Commission, the Federal Communication Commission, the SEC. The interesting thing, and it goes back to your point about when you were writing your column about Holder versus Hall, people were shocked when he wrote these opinions. They were seen as revolutionary. Academics or commentaries would say Thomas is crazy. But 30 years later, now the court is coming around to his point of view. And as you say, it must be gratifying to see it happen. It goes to show you that when he said, they're going to have to deal with me for, you know, a very long time, 30, 40 years. The implications of that are fascinating. So let's talk about those ticking time bombs more. So one you think is the separation of powers and the independent agencies. So much of any other areas because I ask because. If you look at the Supreme Court over the last six, eight years, what I see happening is you see the court kind of cleaning up, what I would call cleaning up. Not everybody would agree with that language, but cleaning up for what are some of the errors, constitutional errors of the liberal decades starting in the New Deal era and going through much of the Berger Court. And I wonder how many of those are left? to clean up. I know there are some, but, you know, I mean, they've done so much on religious liberty, for example. Yeah, that's been sensational. They've done a lot on separation of powers. So what else is out there? That's actually a great way to look at it, Paul, is that we're so far away from the Warren court, and still we have so many decades of allegedly conservative courts trying to clean up the excesses of that court and to restore. the court and the Constitution back onto a more originalist path. So what happens when you've achieved the agenda? This is where I think the speech that Clarence Thomas gave that, again, the journal paid great attention to, that lays out an agenda going forward. Maybe the most important one is he thinks the administrative state, the vast agencies, the power they wield over our everyday lives. He thinks much of that is unconstitutional. So just the first step in that is subjecting all these agency heads to the control of the president because he's the only one democratically elected who enforces the law. The second he's laid out is. we're going to start saying that Congress has to take more responsibility for policy. It can't just kick all these questions over to the EPA and say, you clean the air and then blame the agency when no one likes what it does. He's set out in opinions that there's a limit on how much power Congress can hand over to these agencies. And instead, Congress has to make the choice of what gas mileage is going to be or what pollution we're going to allow or whether we're going to try to.

you know, suppress industrial growth in order to achieve climate change. So that's another one. And then I think a third one is, again, of this administrative state. It has all these weird bodies that has its own court system, has its own legislative system, his own effort. He's also said, That is a violation of separation of powers. We have to call an end to that. And then the very last one I'd say is he's written, even to me, some very radical opinions about the extent of the federal government's power at all under what we call the Commerce Clause. He has suggested, for example, the federal drug laws are all unconstitutional because the federal government can't regulate what one person just happens to sell to another person inside a state that doesn't cross borders. Again, I think all of those are designed, as he laid this out in this speech, to restore respect to the more decentralized, modest federal government that the founders had in mind 250 years ago. We're going to take another break. And when we come back, we'll talk about the increasingly testy exchanges between Supreme Court justices when we come back. Earlier, Google's Greg Carrotto explained how the tech company is using language-based AI and Project AMI to help deepen communication between doctors and patients. Carrado's colleague, Dr. Michael Howell, Google's chief health officer, explains why this research system is designed to focus not just on accuracy, but empathy. I think that is one of the big promises of how technology can support the relationship between patients and clinicians in ways that lead to more engaged patients who understand more about their health, which is what every physician. wants. Don't forget, you can reach the latest episode of Potomac Watch anytime. Just ask your smart speaker, play the opinion Potomac Watch podcast. That is, play the opinion, Potomac Watch podcast. From the opinion pages of the Wall Street Journal, this is Potomac Watch. Welcome back. I'm Paul's you go here on Potomac Watch, and I'm talking about the Supreme Court with Berkeley Law Professor John U. As I look at the current court, Neil Gorsuch might be there with Clarence Thomas. I'm not so sure that it's more than that. I mean, you might get Samuel Alito there on a pragmatic way over time, but it'll be harder to get the other three conservatives and forget about the liberals. I agree that's this question. Thomas, I think that justice doesn't focus on. winning in the short term. He'd rather, as you say, lay down the marker. And then over time, step by step, bring along his colleagues. Most judges are incrementalists. Most judges don't like to overturn precedent. But I've witnessed this. And I think you've seen it too, Paul. Just the power of his ideas have, it's almost like have. by gravitational force, pull the moderates along to where we have a court. It's unbelievable to me. I used to look clerk for a friend of was Judge Larry Silberman, and he would never have thought we would ever live to see the day where the Supreme Court declared every independent agency unconstitutional. It's so incredible for people like him who were scholars of administrative law practiced in Washington, D.C. to see that work.

But it's coming, I think, next month. In that Humphrey's executor case from 1935 or whenever it was, that's going down, John. That's going down. On the longevity point, I thought it was interesting. There was a statement by President Trump three or four weeks ago saying, well, yeah, I may have one or two more Supreme Court appointments before I'm done. And suddenly the folks who know Samuel Alito came out and said, nope, hired his clerks, no plans to retire. And then shortly thereafter, Clarence Thomas let it be known through his colleagues. He's not stepping down either. Not that I anticipated he would. But Clarence Thomas turned 78 in June. You know, I mean, the actuarial tables are ticking and there is some risk. If he stays on and the Democrats take the Senate this year or the White House in 2028 that, you know, you're gambling with the Ginsburg problem, which is, you know, dying in office potentially and not being able to be replaced by somebody who thinks like Clarence Thomas. Yeah, I agree. I can tell you, I think Clarence Thomas will retire no earlier than eight years from now. And there's this apocryphal quick, much like the one you reported on. where he is reported said right after his confirmation, someone asked him, I think at a public event, how long will you serve on the court? And he said, well, they ruined the first 43 years of my life, so I'm going to ruin the next 43 years of theirs. Add it all together, we get to 86 years. I remind him that he said this all the time. But I think that you're right, Paul. Justice, I think most of them would like to retire. There's some. some anomalies, but most of them would like to retire under a president and a Senate, likely to appoint someone who shares their approach to deciding cases. For example, I think Justice Robert F. Kennedy Jr. retired hoping that Brett Kavanaugh, who clerked for him, would be appointed as his successor. And so I think the politics, I quite agree, Paul. If you were Samuel Alito or Clarence Thomas, you look at the elections. You have President Trump in office right now who's been appointing many of their clerks as lower court judges. He signaled that he agrees with the way he has publicly said they're his favorite justices. But what most concern you is the Senate. And this is more, you know, the world where you know well, Paul, if the more it looks like the Democrats might win the Senate or even get to 50-50 or 51-49, the less likely it seems a Senate's going to confirm. a justice as aggressively conservative as an Samuel Alito or Thomas, which suggests you should try to get someone through now. Gosh, maybe it'll be another four or eight years before you have that combination of a conservative president and a conservative Senate. Yeah, it's something of a gamble. In the one hand, you want to keep these justices around because they're so good and so influential. And they have work to do constitutionally. On the other hand, the political gamble there exists. So it's a difficult decision to make. Longevity doesn't necessarily correlate with influence. The person who's the longest serving justice, William O. Douglas, nobody cites or discussing any of opinions. He was a...

bit of a nut. He would basically say things like, I don't care what the text of the Constitution says. Let's just do the right thing. And then Chief Justice Warren, who may have been the most influential justice of the 20th century in terms of, right, we're still talking about him. Now, the court's still working to reverse some of the things that are warranted. He was only on the court 15 years. So, right, you're quite right. Longevity is one thing, but influence matters more, and that is. I agree that you're somewhat subject to the political branches, putting in people at the right times who have the right views. And that alignment of political forces may only come in very short windows. Clarence Thomas once said to me that one thing that is notable is the degree to which the court changes, that is the court itself, the nine justices changes, even with one seat changing. And I think he had in mind when Byron White retired and was replaced by Ruth Bader Ginsburg, both Democratic appointees, but different in their jurisprudence. And that's what we've seen over time with the changes on the court. Brett Kavanaugh and Amy Coney Barrett, Gorsuch. But here's where we are now. And I wanted to ask you about this, because if you look at some of the exchanges among the justices these days, they're very testy to the point that Antonin Scalia could take out his rapier and really slash rhetorically. But he was fast friends with Ruth Bader Ginsburg. And yet what we see now is some of the liberal justices really lashing out in their opinions. And I cite this week's response by Ketanji Brown Jackson in dissent, loan dissent, to a fairly routine Supreme Court order, allowing Louisiana to move ahead with redistricting after the Supreme Court had declared the current map, unconstitutional. So you would not want to hold an election under an unconstitutional map. So they basically said, okay, Louisiana, you can go ahead and write one up that is. constitutional. And she just let the court have it. She said that basically they had abandoned any constraints on their usual process and that just like that, those principles give way to power, end quote, a suggestion that this court had just acted politically to help Republicans gain a seat in the House. And Samuel Alito, joined by Clarence Thomas and Gorsuch in explanatory reply. call Ketanji Brown Jackson's charge of political motives a groundless and utterly irresponsible charge. It is the dissent's rhetoric that lacks restraint. unquote. What do you make of that? I think you're right, Paul. There is a kind of breakdown of institutional norms going on at the court. The exchange you quoted is a symptom of it. I don't think it's just appearing in opinions. But you do see that because Ketanji Brown Jackson, I think, has stepped over a line in that she's been accusing the majority not having ideological differences, whether you're an originalist or whether you think there's a living costume.

She's basically accusing the majority of the court as seeking to support the Republican Party or seeking to support President Trump as an individual president. And this is really offensive to people like Samuel Alito or Chief John Roberts. I have to say, having clerked on the court and having studied it, they don't think about Republican versus Democrat. They almost like it when they decide a conservative in a conservative way. And it's not to the benefit of the Republican Party, for example. So I think you see this starting to appear more often. I think that has crossed the line. You don't see, I don't think conservatives ever accusing, say, the majority in Roe or the majority in Casey of supporting the Democratic Party in their decisions to uphold abortion. Although I got to say, when you talk about Justice Scalia's rape your word, I think he had a great quote in one of his dissents on the abortion cases where he said something like the majority opinion has all the philosophical rigorousness of a Chinese fortune cookie. It was one of the great all-time lines. But you're seeing this breakdown in institutional norms occur, I think, in even more dangerous ways. We've had now... Since the Dobbs case in 2022, that overturned Roe, we've seen three leaks to the New York Times of internal court documents, of internal discussions between the justices. That's almost never happened before. I've never seen before leaks of the actual documents. The leaking of the Dobbs draft opinion itself, which had never happened in the history of the Supreme Court. And I think... The worst consequence of this kind of breakdown norms is not just the exchanges, not just the leaks of internal documents and internal discussions, but I think with the design to put political pressure on the justices. So we saw after the Dobbs opinion, right, someone tried to assassinate Brett Kavanaugh and that assassin would be assassin said he wanted to do it to stop the Dobbs opinion from coming out. I think you're seeing. attacks now on what's called the shadow docket, which I don't think is really a very scary thing or in the dark and certainly not new or attacks on the Trump v. U.S. case about the immunity of the president from prosecution. I think these are efforts to try to use external pressure, to try to get the court to change direction and try to blunt this conservative agenda. I don't think. We've ever seen that kind of internal, because this has got to be internal to the court, this kind of internal breakdown of institutional norms there. Yeah. And what I worry about is that liberal justices, where they're clearly enormously frustrated being in the minority. But, hey, I mean, I've been around long enough to have seen what happens when conservative justices were in the minority. It was a lot of decades and a lot of cases. And you don't remember this kind of vitriol coming out. And what I worry about is you see. these frustrated liberal justices, essentially sending messages outside to the Senate, to Democrats. It's saying, you need to take action. I mean, they don't put it in these words, but they're essentially laying the ground roof for saying, these are illegitimate decisions that you can take, therefore, action to justify.

restructuring the court, packing the court, changing its jurisdictional writ, that sort of thing, putting new restrictions on the court. And that's very dangerous. I agree. And you might remember in the 2020 presidential elections in the primaries, the Democratic candidates were asked to raise their hand yes or no if they would be willing to pack the court. And the only one who said no was Joe Biden. All the other, and I think this has become now part of the party platform, and we're likely to see it come next, all of Democratic presidential candidates are going to say they want to pack the court. It's becoming a litmus test, I think, for Senate candidates, too. And as you say, well, this is extremely dangerous because, as you say, you've seen things come around and go around. Do you think that Republican presidents and Congresses aren't going to add more justices to the court once we... breach, the bullwark are just having nine, it'll just start escalating. And I think liberals should think about as carefully is that means the court will not be in an institutional position to say no to the president and the Congress or the states when the time comes, when individual rights are really under assault, when a majority really wants to suppress, for example, the free speech rights of a minority, the court's not going to be strong enough to stand up to the majority when. You've got presidents and senators aided, I think I agree, unfortunately, by these liberal justices. So I think are encouraging this talk of starting to treat the Supreme Court just like any other political body. That is ominous if it does go in that direction. John, you, thanks so much. Fascinating discussion, a lot of fun. One of my favorite topics, actually, the Supreme Court. I didn't go to law school, but I play one. I play one. I'm the best of all, John. You have a Dartmouth degree but a Wall Street Journal education. Well, you and Larry Soberman and some of my other pals have helped me along the way. John, you, thanks so much for coming in. And thanks everybody for listening. We are here every day on Potomac Watch.

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