Clarence Thomas stands firm against the Confederate flag: Amicus transcript.

SCOTUS Rules on Marriage, Free Speech, and Criminal Procedure: An Amicus Podcast Transcript

SCOTUS Rules on Marriage, Free Speech, and Criminal Procedure: An Amicus Podcast Transcript

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June 26 2015 11:00 AM

The “The Storm Before the Storm” Transcript

The Supreme Court is beginning to rain down decisions. Here’s what Dahlia Lithwick discussed on her latest episode of Amicus.


Photo illustration by Slate. Photo by Tim Sloan/AFP/Getty Images.

We’re posting transcripts of Amicus, our legal affairs podcast, exclusively for Slate Plus members. What follows is the transcript for Episode 21, in which Slate’s Dahlia Lithwick chats with fellow Supreme Court watcher Garrett Epps of the Atlantic. To learn more about Amicus, click here.

We’re a little delayed in posting this episode’s transcript—apologies. This is a lightly edited transcript and may differ slightly from the edited podcast.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

Dahlia Lithwick: Hi, and welcome to Amicus, Slate’s podcast about the U.S. Supreme Court. I am Dahlia Lithwick, Slate Supreme Court correspondent. This was a slightly crazy week, because there were a lot of rumors—there’s always rumors—that King v. Burwell, the big Obamacare case, was coming down on Thursday.

And everybody was running around. And it was a madhouse. And of course, King did not come down. But, we got a whole bunch of decisions on Monday and on Thursday. They had a big pileup cases—17 that they needed to get through. And only two weeks left of the term. Folks were getting nervous. The court solved that problem on Thursday.a) by adding Thursday as a decision day, where there would be more decisions. They hadn’t done that yet this term.

And then, by handing down six big cases. Including Kerry v. Din, a case that was just supposed to be about what you do when you don’t get your visa, but turned into quite a discussion about whether marriage is a fundamental right. A pair of speech cases that came down on Thursday. A lot to chew on. And joining me to try to chew on at least some of the cases that the court handed down this week is one of my favorite people in my little court mafia, Garrett Epps, who teaches law at the University of Baltimore.

He’s also the Supreme Court correspondent for the Atlantic. And I like to think that the two of us kind of hold down the cheap seats at the U.S. Supreme Court. So, Garrett, welcome, first of all, to Amicus. It’s great to have you.

Garrett Epps: Great to be here.

Lithwick: So, this was a big week at the court. Probably not the big week everybody was hissing and whispering about. But it was still a pretty big week. And I thought we’d start with Monday, if we could, and talk a little bit about Din. Kerry v. Din was supposed to be a kind of a not very interesting case, nominally, about how much due process your spouse gets when you want a visa for them.

Can you talk a little bit about what it turned into? Maybe tell us the facts of Din, and then what Scalia did with it.

Epps: It seemed to be pretty straightforward statutory interpretation, with a little Constitutional overlay. You had a woman named Fauzia Din, who became a U.S. citizen in 2007. She had earlier married an Afghan citizen named Kanishka Berashk, who had actually been a civil servant in the government during the period that it was under the sway of the Taliban.

After she became a citizen, she registered him as her immediate relative. And then, he petitioned for a relative visa. And the embassy in Pakistan, the U.S. Embassy, said, “No. We are turning you down because of a section of the INA that relates to terrorist activities.” That’s all they said. And the question was, “What do you think I did? Can I show you that I didn’t?”

And so forth. The answer was, “That’s all we’re going to say.”

Lithwick: And everybody who was a civil servant was a civil servant for the Taliban.

Epps: Probably, yes. Right.

Lithwick: OK.

Epps: And Berashk had no right to get into federal court. He was an alien, nonresident in the United States. Din went to court and said, “This is my husband. I am a U.S. citizen. I have a right, at least, to judicial review of this decision.” Which means that the government should give me a little better explanation. Or if they can’t give it to me, give it to a court. And that’s the issue that came before the court; how much process is due to a US citizen whose spouse is being excluded.

And two justices, Justices Kennedy and Alito, basically decided the case and just said—and these words sounds harsh, but they come from immigration law—“He got due process. That’s all the process you’re due.” They cited a statutory section, and it would be, “We defer to the government in an area of national security.” But Justice Scalia wrote a separate opinion.

Lithwick: Joined by Clarence Thomas and John Roberts, I believe.

Epps: And John Roberts, that’s right. So, it’s the plurality opinion, which is enormously broad. Just goes way beyond the issue to say, “You know, now that we think about it. Now that it- In the spring of 2015, we give this some thought, actually, being married to somebody doesn’t confer any rights at all on anybody.” They said, “I know we’ve talked in the past about the fundamental right to marry. And, you know, there’s no problem here, because they got to have a- they got married. They got to have a wedding and everything.”

But there are no other rights that attach to that, not even the right—presumptive right—to have some process before you are refused the ability to live with your spouse in the United States. And beyond—he went beyond that to say, “In point of fact, there can’t be any fundamental right for a female American citizen to live with her noncitizen husband. Because look, as recently as 1922, the law said that if a woman married a foreigner, she lost her citizenship.”

Then there’s this remarkable little digression where he say, “Now, I know that some people think that that discriminatory law probably isn’t constitutional today.” Because as we know, Justice Scalia has said, repeatedly, that equal protection doesn’t encompass sex discrimination, because that was permitted at the time of the framing. And as a result, he says, “So, even though it was unconstitutional, it means the right’s not traditional. Therefore, there is no right.”

And you know, you’re kind of scratching your head about this, until you realize this is the spring of 2015. It seems likely the court is poised to announce a fundamental right of same-sex couples to marry. And here’s a kind of dye marker across the channel from Justice Scalia, saying, “Well, people have the right to marry. That’s all they have. They don’t necessarily have the right to adopt. They don’t necessarily have the right to healthcare access. They don’t even necessarily have the right to live with their spouses.”

So, it was kind of an uncanny feeling, as I read that opinion.

Lithwick: So, let’s turn now to the speech cases. We had two. One   that was pretty strongly pro-speech, and one that was pretty strongly anti-speech. The pro-speech one, 9-0. Anti-speech, 5-4. Garrett, why don’t you start with the easy one, Reed. Let’s talk about Reed v. Town of Gilbert. A comedown, 9-0, against a small town in Arizona.

Tell us what went on.

Epps: Well, Reed is one of these cases. It’s a nasty little municipal quarrel that grows to engulf the free world. There was a church in Reed that didn’t have a church building. And so, they would their meetings at various rented auditoriums. And they wanted to put up signs that said, you know, “This way to the Good News Church.” And the town of Reed has this elaborate sign code, right? That like—with five or six different categories of signs. And the town told the church that their signs were “directional signs.”

And directional signs have to be smaller than all other signs, and can only be up for two hours after the event. So that the poor congregation would have to go and sing praise. And then, you know, rather than get to go the parish hall and have coffee, they had to run all out and pull down the signs. And when they didn’t, the police came around and they cited the—and sometimes, they confiscated the signs. So, the town was behaving in a very snotty fashion toward this church.

And so, they sued and said, “Well … ” And this was the issue. “Your sign code differentiates among the signs on the basis of what they say.” And they said that makes it content-based. Now, content-based is sort of like, to say a statute—in First Amendment law, to say a statute is content-based is sort of like in the movie, where the person says, “Candyman, Candyman, Candyman.” That’s doom. Right? Content-based restrictions are virtually never upheld. So, the argument was, “No, actually. They’re not content-based. They’re functionally-based.”

Right? “And this is a directional sign. And we think it’ll distract people.” And so forth. And the Court, you know, blew right past that and said, “No, this is a content-based restriction on speech, and it doesn’t pass strict scrutiny.” This is what five justices said. And for that reason, you know, it is struck down. The town’s reasons for restricting these signs are not compelling reasons. Now, there was a split among the Justices, because the-

The so-called liberal justices said, “Look, let’s be a little less exact about this. This is a terrible law. It clearly violates the First Amendment. But let’s not establish a rule that says no sign requirement will pass strict scrutiny.” You know, and the federal government had been involved in this case because they see a threat to the federal Highway Beautification Act, which keeps the billboards off the interstates, in the ruling that actually the five Justices came to. Where they basically said all sign ordinances are now going to be tested by this very strict standard.

Lithwick: Right. And Elena Kagan, writing for the four liberal justices sort of says—and she actually says, “I suspect we will regret this decision.” Because people who have hidden driveway signs are suddenly on the hook. You know. We’re not going to have speed bump signs. It’s kind of a funny dissent. But she more or less says, this absolutism, as applied to every sign ordinance in the country, is going to be a nightmare. And it’s just a very—I mean, she concurs in the result.

But it’s a very pragmatic concurrence. Just saying, holy cow, we’re going to be sorry when they come back to us with the hidden driveway signs. And one other thing that’s interesting about it is, this was lauded as a big win for religious freedom and religious liberty. It was always styled as a, you know, religious freedom case. But certainly, the court was not touching that, in this season of hot religious liberty debate. The court was not interested in that theme, right?

Epps: Right. It just—it never actually surfaced in argument.

You know, I think that it was mentioned once. And one of the justices said, “Yeah, we’re not here to talk about that.” It’s not mentioned in the opinion, because the only question is- You know, it would apply equally to directional signs saying, “This way to Garrett’s garage sale.” So, there was no extra protection, no extra work done by the fact that this was a church.

Lithwick: And we should also just note that the town had enacted a new rule in 2011. So, this doesn’t actually impact, you know, the town of Gilbert all that much, either.

But certainly, a big win for the principle that you can’t differentiate between political signs and directional signs. Let’s turn to the other speech case, which turns out to be, you know, a decision at least somewhat to do with Confederate flags on the same that, unfortunately, it turned out that Confederate license plates had a role in the horrific, horrific shootings in Charleston, South Carolina. So, Garrett, maybe let’s talk a little bit about what the issue was, at least, in Walker v. Texas Division Sons of Confederate Veterans.

And then, we can talk about the holding.

Epps: Well, in Texas, their law specifies that if you get a group of people together, and you’re willing to put up a certain money—I think $8,000—your group, your business can get what’s called a specialty license plate. So that you have a Texas license plate, and it has a nice slogan on it. Like, “Mighty Fine Burgers” is one. Or, you know, “Hook ‘em Horns” for the University of Texas. And a wide variety of these local groups have gotten them.

You know, Kiwanis, “Service Before Self,” and so forth. So, the Sons of Confederate Veterans, which is an organization dedicated to upholding the memory of the Confederacy. They complied with all the requirements. But part of what the law requires is that there be public notice and comment before a specialty license plate is adopted. And then, the license plate board has got to approve it. Well, in this case, there were 36,000 comments submitted to the board saying, “For the love of God, don’t let cars be driving around on the road with a Confederate flag on them. This is going to cause violence.”

And under the statute, the board had the power to refuse a specialty plate if it would give serious offense to one or more citizens. And obviously, they concluded this is going to offend a lot of citizens. We don’t need to do it. So, they voted down the plate and the sons took them to court.

And basically, ended up before the Supreme Court taking the position that any group with any symbol had a First Amendment right to have that symbol on a license plate, regardless. And the Justices pushed. They said, “What about jihad?” You know …

Lithwick: Swastikas.

Epps: The swastika. Yeah. You know. And the answer was, “Yes. The state has no power to suppress … ” “And what about dirty words?” Justice Scalia wanted to know. The answer was yes, dirty words. So, the court was a little troubled by that.

But what happened in the result, in this case, was really the same lineup as in the Gilbert case, except one person crossed the aisle, quietly. And that was Justice Thomas. So, the result was that the court said Texas does not have to have a Confederate flag license plate. Because the license plates are what’s called government speech. And the First Amendment just doesn’t apply. So, it’s quite a kind of startling result.

Lithwick: Right. And it’s useful, probably, Garrett, to track back and see that this government speech doctrine, which really, it is the death knell.

Right? As soon as it’s the—as soon as you can say, “Hey, the government is speaking here, and we get to pick our messages. And we’re not going to endorse messages we don’t like.” And this goes back to a case that has to do with monuments in a public space in Utah. And so, the minute Justice Breyer says, “Hey. Folks are going to think the government is speaking here. They’re going to think that the government favors Confederate flags.” And the government gets to decide its message. So, this is done, and cites heavily the monuments case, the Summum case.

And the dissenters go a little bit crazy, right? I mean, this is really, I think, a rip-snortingly funny Alito dissent. It’s a part of Alito you don’t often see. Where he’s just like, “Really? Really? You’re driving around at 8:30 in the morning, and you see a license plate that says, ‘I’d rather be golfing.’ And you think, hey, the government endorses golfing instead of work.” Right? I mean, his whole- His whole dissent basically says that’s nuts. Nobody thinks this is government speech. People think this is the driver talking.

And that is protected First Amendment speech. So, that’s kind of how it comes down. The four dissenters just say this is a preposterous notion, to think that folks, say, Texas endorses this. So, talk about the person who crosses the aisle. Clarence Thomas, writing nothing, simply joins with the liberals and say, “No, I agree. Government speech.”

Epps: Well, in this case, the silent Justice really was silent. He just crossed the aisle and cast his vote for the government speech doctrine, and against the idea that there could be, or had to be, a Confederate flag license plate.

And if you relate that to his history on the bench, it has a kind of interesting background. Because, in some ways, his finest moment, and probably the moment he has had the most influence as a Justice, was in 2002 in a case called Virginia v. Black. In which the state of Virginia has a statute that says it’s a crime to burn a cross with the intention of intimidating anybody. And this came before the court under a First Amendment challenge.

And it was widely considered likely that the court would strike it down. They had recently done some cases saying, you know, so-called hate speech is protected by the First Amendment as so forth. And then, out of the blue, in the middle of the oral argument, where someone is saying, “Well, you know, admittedly this burning cross could be seen as a threat.” Justice Thomas spoke up and he said, “It’s a lot more than a threat, isn’t it?” People in the courtroom, you can kind of hear the- The kind of like, “What? He spoke.” He says, “It’s a lot more than a threat, isn’t it? Don’t you know the history? Don’t you know what the Ku Klux Klan was all about?”

“Don’t you know about the Knights of the White Camellia? And that this is a message intended to suppress and terrorize and entire community?”

Lithwick: Right. So, let’s listen to the audio. This was, I think we all agree, a transformative moment. Clarence Thomas speaking and explaining how he feels about cross burning in Virginia v. Black, 2002.

Clarence Thomas: Mr. Dreeben, aren’t you understating the effects of the burning cross?

This statute was passed in what year?

Michael Dreeben: 1952, originally.

Thomas: Now, it’s my understanding that we had almost a hundred years of lynching and activity in the South by the Knights of Camellia and the Ku Klux Klan. And this was a reign of terror. And the cross was a symbol of that reign terror. Isn’t that significantly greater than intimidation or a threat?

Dreeben: Well, I think they’re coextensive, Justice Thomas. Because it is …

Thomas: My fear is, Mr. Dreeben, that you’re actually understating the symbolism and effect of the cross, the burning cross. I understate- I indicated, I think, in the Ohio case that the cross was not a religious symbol. And that it has- It was intended to have a virulent effect. And I … I think that what you’re attempting to do, is to fit this into our jurisprudence, rather than stating more clearly what the cross was intended to accomplish.

And indeed, that it is unlike any symbol in our society.

Dreeben: Well, I don’t mean to understate it. And I entirely agree with Your Honor’s description.

Lithwick: Garrett, you’ve talked to Rod Smolla, who was defending the free speech side of this, about what that statement by Thomas brought about among the justices. Can you describe it?

Epps: Smolla said, “I have never seen the atmosphere in a courtroom change more quickly.” And the justices did a, you know, 180. And it’s like, “Oh, no. That’s what we meant to say. What he said. Yes. Yes. Clarence.” And the statute ended up being upheld. Because Thomas grew up in the deep, Jim Crow South. And he remembers what it’s like to see burning crosses. He remembers what the Confederate flag meant on the back of a truck in the ’60s. And his view is, this isn’t speech at all. You’re not asking the right to speech. You’re asking for the right to terrorize, and it is not …

He says, it is not expressive. So, it was fascinating, on a day where Thomas had so much to say, that in some ways his most powerful statement was utterly silent.

Lithwick: Right. And it’s probably worth flagging that we don’t know.

Epps: Yes.

Lithwick: I mean, we simply don’t know. He didn’t write a concurrence. But I had the same reaction. In fact, I think I wrote the same thing. That it’s powerful to have someone on the bench who says this stops being speech when it is freighted up with the historic threat that comes with it.

And you know, again, as the country was just beating itself up over why this flag is flying over the capital, you know? In South Carolina. Fascinating. Fascinating for the court to accidentally decide a case that really says, you know what? Something about this symbol, I think, that might have had something to do with it. This symbol is a bridge too far, and Texas gets to say no. Talk for a moment about how this is going to play out. There’s another license plate fight going on about “Choose Life” license plate.

How does this play out now?

Epps: I think that the straightforward application of this opinion is that states can say “Choose Life”, and they can refuse to have, you know, pro-choice. That viewpoint discrimination is OK. Justice Breyer, in his opinion, said, “The check on the state’s ability to discriminate in its messages, the major check, is the electoral process.” In other words, if government starts suppressing speech they don’t like, the voters can turn them out.

So, it’s a pretty permissive standard. And I think that the “Choose Life” case is pretty much over.

Lithwick: And what—I mean, we always say, and we say frequently on the show, “The John Roberts court is the most speech protective court in the history.” So, this is a little bit of a rude awakening if you believe that this has been a profoundly speech protective court. What do you think happened?

Epps: You know, I’m sticking with my story. Because if you read the dissent that you mentioned.

It is, it is funny. It is Alito at his best. But it’s also perfectly orthodox, Roberts court, First Amendment jurisprudence. They say you’re suppressing a symbol. Symbols involve beliefs. That makes it what’s called viewpoint-based. And that’s like saying Candyman four times. You know, it’s virtually never allowed, viewpoint basis. And it breaks no new ground. There’s nothing that has to be said in order … you know, and then you go through the whole thing of how, you know, sometimes speech is unpleasant. And sometimes we don’t want to hear what people have to say.

But that’s the price we pay for living in a free- It almost writes itself. So, really the only thing that is different is a changed vote. And that is a changed vote who is usually, particularly in campaign finance and areas like that, usually completely onboard with the orthodox, speech protective view of the Roberts court.

Lithwick: Before we move on to our next case, I want to pause for a minute to talk about one of our sponsors, the Great Courses. You know, we don’t stop learning after we leave school.

And the Great Courses series on “The Great Debate: Advocates and Opponents of the American Constitution” is a fantastic foundational listen, if you want to understand what we talk about on this show all the time. This is kind of the backstory of Jefferson and Madison, Patrick Henry, John Hancock. The divisions, the factions, the fights they got into. And the debates that produced what we now think of as our founding document. The Great Courses offers over 500 courses in all sorts of subjects ranging from law, history, science.

And they’re available in audio and video formats. They’re all taught by really interesting and engaging professors. Now, the Great Courses created a special, limited-time offer for Amicus listeners. If you order from eight of their best-selling courses, including “The Great Debate: Advocates and Opponents of the American Constitution”, you can get them at up to 80 percent off the original price. Go to That’s

And check out “The Great Debate: Advocates and Opponents of the American Constitution”. Now, we turn back to our guest, Garrett Epps, Supreme Court correspondent for the Atlantic, to talk about a couple more cases that came down this week.

So, the other thing that happened on Thursday, Garrett, was a slew of criminal cases. And last week’s show, we talked a lot about Clarence Thomas, and how, more and more, he seems to stand alone. And that he, you know, doesn’t mind going after Scalia. Doesn’t mind going after Justice Alito. He’s got his own very unique worldview.

Boy, was that in evidence this week. So, let’s talk first, maybe, about Brumfield v. Cain. Talk to just briefly about what that case was about, and the holding.

Epps: Well, Brumfield is a case, in a line of cases that begin in the first decade of the 21st century, in which the court has established a rule that states cannot execute intellectually disabled people.

Lithwick: And that’s … they used to call that mentally retarded, in the early, right?

Epps: Yeah. The legal term was mental retardation, for a long time.

And Brumfield tested that. We had a case a few years ago, called Hall v. Florida, that tested it. Also, because the states—the death penalty states—basically are kind of taking the position that, “Okay, that’s your rule. That’s fine. We’ll decide who’s retarded, and who isn’t.” And so, in Florida they said, “Well, we’re setting our own cutoff in IQ scores.” Now, we come to Brumfield. And the defendant in this case, his crime was committed, he was sentenced to death before the mental retardation cases were decided.

So, subsequently he went into court and said, “I am entitled to a chance to prove that I am intellectually disabled, and therefore not eligible for the death penalty.” And the Louisiana state court said, “Well, you know, we got a score on your IQ here that was 75. And we’ve got some people who say you’re adapted fine. You’re just doing good. You just happen to be a real mean sociopath.”

So, they said, “No, you don’t get it. You don’t even get an evidentiary hearing.” And so, on habeas, the inmate said, “You know, I should be able to make my case.” And in an opinion by Justice Sotomayor, the majority on the court said, “Yes, we really were serious about this intellectual disability rule. Where you don’t get to mess around with it by saying, ‘Well, it was close enough for government work.’” And so forth. And of course, Justice Thomas, who had a big day as we just said, wrote the dissent in that.

And it’s a very remarkable dissent, which we can talk about.

Lithwick: Right. And it’s … again, this is a 5-4 split. The four liberal justices, Justice Kennedy, who’s always onboard with this, limiting the death penalty for various groups. So, not a surprising lineup. Surprisingly, however, because Thomas writes the dissent and the other justices don’t join certain parts of it. I should add that he has a picture in the appendix of the victim who was an off-duty police officer.

Scalia joins in part of this dissent. The chief justice and Alito don’t join in part of the dissent. What’s the part of the dissent that they just can’t join?

Epps: Well, Justice Thomas spends a great deal of his dissent talking about, “Look what a horrible crime this was. It left these six children without a mother. And here’s what happened to them.” And it turns out that what happened to them is very inspiring. The oldest brother held the family together, and played football in college, and went into the NFL, and became a football star, and raised his brothers and sisters with him.

And there’s a good deal about how inspiring this story is. And then, he contrasts that with the defendant in this case. He says, “Well, by contrast, he’s spent the last twenty years trying to get out of being executed.” You know? As if this were, you know, something that is sort of a hobby that someone shouldn’t be engaged in. And there’s a separate opinion, as you say, by Justice Alito and the chief justice, saying, “You know, we really do think that this dissent is pretty much right on the law.”

“But we’re not all that sure what this story about the football guy has to do with it. And so, we’re not going to join that part.” You know, it’s real nice. They go out of their way to say it’s very inspiring. “We don’t really think it has much to do with the law.” So, Thomas is just seeing it through his own lights. And also, this may be the first opinion to include a video link. Because he …

Justice Thomas says, “I want you to see Mr. Brumfield’s confession.” You know, just get your own impression of what kind of human being this is. And of course, it’s not really a surprise that Justice Scalia would join. Because Justice Scalia is also always attempting to put a moral context onto these death penalty appeals. These are bad people who have done horrible things. And we need to consider their claims in that light.

Lithwick: I think it’s fascinating that Thomas spends so much energy not just saying, you know, here was the victim. This was …

You know, he really says, let’s start where Justice Sotomayor doesn’t. You know, and tells the horrific, gruesome stories of the murder. So, there’s that. There’s kind of lionizing and really humanizing, in important ways, the victim. This is—this is not uncommon for Scalia and Thomas. But then, I think there’s that second step, which was fascinating. Where he talks about the inspirational story of the victim’s son. And you know, we talked last week on the show.

And I guess I’m just obsessing on it. But this is really classic Clarence Thomas. Right? This is Thomas saying, “I’ve got some stuff to say. It doesn’t have much to do with the case. Apparently, I lost the chief and Alito. But I’m going to say it anyway, at length, with a video and a photograph. Right?

Epps: And I can’t help see the link between the autobiographical book that he cites in this dissent and the literature that he draws on, and that he contributed to with My Grandfather’s Son.

Which is his memoir of having to pull himself up out of abject poverty in the segregated South, to the point where he could be on the Supreme Court. And a whole literature that goes back more than a hundred years of African-American autobiography that is about, you know, doing it without any help. You know, this is what we’ve had to do. Going back to—up from slavery. So, I think that this is something very deep inside him. It is Clarence Thomas. You don’t want to come? That’s fine. You know, we lost anyway.

And I also have to say, it’s a very powerful piece of writing. You know, on the whole I think that the majority is right on the law. But you read this and you just—you know, you just think. You know, the lives that are involved. And again, for it to happen on a day where violence has claimed nine African-American lives in Charleston, was very powerful.

Lithwick: It’s fascinating that we’ve talked about Thomas, you know, in several contexts now. How deeply, deeply his race, and his story, and growing up in Georgia in the Jin Crow South has affected him.

And yet, this is the Roberts court, right? This is the Shelby County court. This is the—you know, we’re not divvying up by race court. This is the John Roberts—you know, the best way to get over discriminating by race is to stop discriminating by race. I think it’s important and worth saying that this is the Clarence Thomas who votes with that block.

Epps: Well, I think it’s entirely consistent with the tone of the Brumfield dissent. It’s entirely consistent with My Grandfather’s Son. Because if you remember his dissent in the Grutter cases. It begins with a long quote from Frederick Douglass, who says …

You know, after the Civil War. And Douglass, the great abolitionist, says, “What shall we do with the Negro? I tell you, do nothing with us. Let us stand or fall on our own.” And that tradition, which is very deep, it’s a tradition that goes very deep in African-American thought, of self-help. Get away from us. We don’t want anything …

Lithwick: Pick yourself up by the bootstraps.

Epps: Right. Our job is to, out of just sheer internal strength, to pick ourselves up and make something out of ourselves.

That really is who Thomas is. And that’s how he sees his life.

Lithwick: So, there’s one last case we have to turn to. Davis v. Ayala, which is, again, nominally a case about whether you’re entitled to a jury that has not had members struck for reasons of race. That’s kind of what the case was meant to be about. But Anthony Kennedy writes to just sort of say, “Boy. You know, putting people in isolation, putting them in solitary confinement is super bad.”

And just writes this kind of discursion on solitary. And Thomas had something to say about that. So, talk a little bit about Clarence Thomas kind of pushing back at Kennedy on, by the way, an issue that has nothing to do with this case. Right. Well, I mean, you could say Kennedy was the first one to do a Thomas in this case. Because he says, he begins by saying, “I concur, without qualification.” In the opinion of the majority that denied this petitioner relief.

He’s a death row inmate. He says, “I concur without qualification. But you know, it occurred to me the other day, that this guy has been in solitary confinement for probably about twenty years. Do you have any idea how awful that is?” And he reached back, in American history, reaches back to a really wonderful case called In re Medley. Where Colorado passed a law that a death row inmate could not even be told the day of his execution. So, he had to live perpetually in fear.

And the court said solitary confinement under these conditions is horrible. He quotes Dickens. He quotes Dostoevsky. He just says, “As a society, we are failing. We will be judged harshly for what we’re doing.” Now, as you say, it has absolutely nothing to do with the case. And he notes that. He says, “As a matter of fact, this is not in the record. I asked a question about it, but nobody knew. But we shouldn’t ought to be doing this to folks.” And then, Thomas comes back with a one paragraph dissent. You know, saying, “Well, you know, this fellow may have been in solitary confinement.”

“Probably not real pleasant for him. But the victims, of course, are buried in the ground. And we shouldn’t forget that.” It’s a point that he and Scalia make repeatedly. These guys are doing a lot better than the people they killed. And so, you’ve got both of them of the reservation. And the interesting thing to me about the Kennedy concurrence is that, you always wonder how open the Justices are to the dialogue that’s going on in the larger society.

And how much they live in a bubble, a cocoon. And Kennedy has obviously been reading the newspapers.

Lithwick: The New Yorker for sure, right?

Epps: Yes.

Lithwick: The law reviews.

Epps: This is a thing that is being discussed in the last six months. And here it is popping up on the court. And it may be a signal saying, “Bring us some cases.”

Lithwick: Garrett, one thing that we talk a lot about on Amicus, is the extent to which—the court is not doing its usual 9-0, 9-0, 9-0, 5-4, 5-4 on ideological lines. Can you reflect a little bit on the very strange alliances that pop up?

Even this week, with some very fraught cases. We’ve talked a little bit about Clarence Thomas migrating in the speech case. What’s going on?

Epps: Well, one of the mantras that we who cover the court can fall into is that the court is polarized the way the country is polarized. You’ve got five conservative Republicans and four liberal Democrats. And you know, the tension is palpable. You could cut it with a knife here, as the fight begins. The two sides are circling each other.

But I’ve begun to think that, inside the court, that’s not what’s going on at all. That these guys are now used to being together. They know each other. I think they basically kind of like each other. And this court seems—you know, they’re going to be deciding big issues in the next ten days. They seem pretty relaxed. And as a result of this relaxation, you have Chief Justice Roberts crossing the aisle and voting with the liberals. You have Thomas, in a different case, crossing the aisle and doing a 5-4 with the liberals.

You have a concurrence in Ohio v. Clark, which is a case about whether a statement made to a teacher by a 3-year-old about child abuse could be admitted in a trial of the abuser. That is a concurrence of Justice Scalia and Justice Ginsburg, espousing one of Scalia’s very important originalist ideas. And so, I think that, as the pressure is off. And that’s weird to say. Because given …

Lithwick: Right. Right.

Everybody’s watching.

Epps: Given what’s going on. They’re beginning to encounter each other in a much less stylized fashion. And I think there is, underlying it, there’s a certain amount of affection.

Lithwick: Yeah. It’s interesting. You see, there’s almost a way in which, oh, we don’t have to keep playing out this 5-4 drama. It’s gotten a little boring. You know, we kind of blew it on Citizens United. Or we blew it on Bush v. Gore. And so, now we’re going to show bits and pieces of who we really are, and what really matters to us.

 And you can track it by justice, right? Chief Justice Roberts really cares about judicial integrity, and the appearance of—so, he’ll join with the liberals on the speech case. You know, we have Thomas, as we said, who may or may not be reacting to the power of the Confederate flag. So, there is a strange way in which everybody has abandoned sort of the, “I am completely the totality of my ideology,” and moved on to something slightly different and much more deep.

 Epps: Yeah. And interestingly enough.

The harshest words that I saw in the opinions Thursday, were Justice Scalia attacking Justice Alito, in Clark. Because Alito is sort of saying, “Yes, we have this originalist precedent that Justice Scalia pioneered. But as we apply it, it isn’t really as strict as might have been thought to be. And Scalia, in this concurrence joined by Justice Ginsburg, is like, “You know, this is dishonest. What you are doing, you are evil.” I mean, it’s just really kind of …

You know, full Tasmanian devil. And the disagreements inside the conservative block are becoming very interesting.

Lithwick: Garrett, it is just a joy to have you on the show. Garrett Epps is a professor of law at the University of Baltimore. He’s also a must read, I tell you, must read Supreme Court correspondent for the Atlantic. Thank you for being here.


Epps: I loved it.

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Amicus is part of the Panoply network. Check out our entire roster of fantastic podcasts at I’m Dahlia Lithwick. And we will be back with you very soon for a very special end of the Supreme Court term edition of Amicus.