Associate Justice Clarence Thomas of the U.S. Supreme Court delivered the 2001 Francis Boyer Lecture on February 13 at the Institute’s annual dinner. His remarks are excerpted below.
It is very tempting to confine my talk to the subject that I am most familiar with: the law and my years at the Supreme Court. Even though straying from that narrow ground may be hazardous, I am going to speak more broadly, as a citizen who believes in a civil society and who is concerned because too many show timidity today precisely when courage is required.
In Supreme Court cases, finding the right answer is often the least difficult problem for a judge. Having the courage to assert that answer and stand firm in the face of the constant winds of protest and criticism is often much more difficult.
If we are to be a nation of laws and not of men, judges must be impartial referees who defend constitutional principles from attempts by particular interests (or even the people as a whole) to overwhelm them in the name of expediency. By insulating judges from external retaliation and from internal temptations of ambition, the framers hoped that the judiciary would be free of pressure not only from the government, but also from the people.
Life tenure and an irreducible salary exist only to help judges maintain their independence and, hence, their impartiality, which is central to judging and to being a judge. When deciding cases, a judge’s race, sex, and religion are not relevant. A judge must push these factors to one side in order to render a fair, reasoned judgment on the meaning of the law and must attempt to keep at bay those passions, interests, and emotions that beset every frail human being. A judge is not a legislator, for whom it is entirely appropriate to consider personal and group interests. The ideal of justice is to be blind to such things.
In addition to these personal challenges, judging is difficult because the Constitution is written in broad, sometimes ambiguous terms. When it comes time to interpret the Constitution’s provisions, for instance the Speech or Press Clauses, reasonable minds often differ on their exact meaning. But that does not mean that there is no correct answer, that there are no clear, eternal principles recognized and put into motion by our founding documents. Those principles do exist. The law is not a matter of purely personal opinion. It is a distinct, independent discipline, with certain principles and modes of analysis that yield what we can discern to be correct and incorrect answers to certain problems.
A judge who strictly adheres to the rules of impartiality and judicial restraint is likely to reach sound conclusions. But as I have said, reaching the correct decision is only half the battle. Having the courage of your convictions can be the harder part.
Today, no one can honestly claim surprise at the venomous attacks against those who take positions that are contrary to the canon laid down by those who claim to shape opinions. Such attacks have been standard fare for some time.
If you trim your sails in response, you appease those who lack the honesty and decency to disagree on the merits of an argument but prefer to engage in personal attacks. We best arrive at truth through a process of honest and vigorous debate. Arguments should not sneak around in disguise, as if dissent were somehow sinister. One should not cowed by criticism.
Those who engage in debates of consequence and who challenge accepted wisdom should expect to be treated badly. Even if one has a valid position and is intellectually honest, he has to anticipate nasty responses aimed at the messenger rather than the argument. Those responses aim to limit the range of the debate, the number of messengers, and the size of the audience. The objective is to pressure dissenters to sanitize their message.
The dissenter must stand undaunted, for bravery is required to secure freedom. We are required to wade into those things that matter to our country and our culture, no matter what the disincentives are and no matter the personal cost.
The Founders warned us that freedom requires constant vigilance and repeated action. When asked what sort of government the Founders had created, Benjamin Franklin is said to have replied that they had given us "a Republic, if you can keep it." Today, as in the past, we will need a brave civic virtue, not a timid civility, to keep our republic.