Sen. Ted Cruz on Justice Thomas and the Supreme Court’s Future

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0:17From the opinion pages of The Wall Street Journal, this is Potomac Watch. The U.S. Supreme Court opens its new term in two weeks, and Supreme Court Justice Clarence Thomas will reach his 35th anniversary on the court three weeks later in late October. Justice Thomas will, if he serves another a little less than two years, become the longest-serving Supreme Court Justice, surpassing William O. Douglas. Senator Ted Cruz of Texas, a former Supreme Court clerk, is out with a new book on Justice Thomas. The title is Going Further, The Incomparable Clarence Thomas. And Ted Cruz, Senator Cruz, is our guest today.

0:57Welcome, Senator. Good to have you here in Potomac Watch. Paul, good to be with you. Thank you for having me. So I'm Paul Gigo, editor of the Opinion page of the Journal. And let me start, Senator, by talking about your time in the court. You were a clerk on the court working for Chief Justice William Rehnquist at the time. So you overlapped there with Justice Thomas. What was he like when you were not a senator. You were a clerk. Well, he is an extraordinary man. And I've been blessed to be friends with Justice Thomas now for more than 30 years. I met him first in 1995 when I was a law clerk on the Court of Appeals and then when I was a law clerk at the Supreme Court.

1:34And he's brilliant. He's principled. He's down to earth. He took time. He became friends with many of the clerks. One of the interesting things about Justice Thomas is the difference between who he is and reality versus the caricature the media has painted. He is very much a down-to-earth, regular guy. In fact, it is indisputed that the justice who is most beloved by the janitors and the electricians and all of the working men and women who work at the Supreme Court is Clarence Thomas. He knows them all. He knows their kids' names. And he's someone who, his laugh, he has this deep, deep Santa Claus laugh that's ho, ho, ho, that you can hear it echoing down the halls.

2:21And he's someone who, after clerking, I spent more than a decade as a Supreme Court litigator. And so my job was arguing in cases before the court. And so I got to know Justice Thomas much better then. And then for the last 14 years, being on the Senate Judiciary Committee, I've been deeply involved in every confirmation for the last 14 years. And it was really that background, Paul, you know, two years ago is when I decided to write this book. And I went to Justice Thomas's chambers and I sat down and said that I wanted to write a biography of his, telling his story and telling it to today's audience I thought was really important.

2:57And I asked if he would agree to sit for one-on-one interviews. And he leaned back in his chair, he thought about it for a second. And he said, you know, Ted, if you were anybody else, if you were a law professor, my answer would be no. But he said, because it's you, I'll do it. And I was very grateful for that. I think he believed that with my background and different experiences with him, that I could do an effective job of really conveying who he is and explaining his life, his principles and his jurisprudence. And so we spent nine and a half hours of one-on-one interviews sitting in his chambers, and that became much of the basis of the book.

3:35Well, that's a great privilege to get that amount of time with the Supreme Court justice, so you're very fortunate. I think many of us know his background, you know, hardscrabble background and so on, and fighting prejudice all the way up the chain, right up until through his confirmation hearing. But let's talk a little bit about what you think his jurisprudence is and how it's affected the court. Well, as you noted, he is right now the second longest serving Supreme Court justice in history, and in less than two years, he will become the longest serving justice. If you look at his body of work by any measure, he is one of the most consequentialist justice and consequential judges to have ever served on the court.

4:18There are a host of areas where his jurisprudence has been important. First and foremost is he has been the leading expositor of originalism. The idea that when you are interpreting the words of the Constitution, you should be governed by their ordinary plain meaning as understood at the time the Constitution was adopted or the amendment in question was ratified. And that is a judicial philosophy designed to limit discretion in judges, designed to have the law have a fixed meaning. And Justice Thomas has been tremendously effective. Most judges on the bench today are originalists. When Clarence Thomas arrived on the bench, almost no justices or judges on the bench were originalists.

5:04And I think Clarence Thomas and Antonin Scalia were the two leading champions of constraining judicial discretion. I think that matters enormously. You also have areas of case law, none more significant than race. And Clarence Thomas has been the most clarion voice against government discriminating based on race, making the argument that the plain text and the original understanding of the 14th Amendment and the 15th Amendment means that the government cannot discriminate on race, even when it is so-called benign discrimination, when it is affirmative action, whether by government or by government.

5:43or by private entities. And it's striking, Paul, this is true in multiple areas of law, but none more clearly than race. Early Clarence Thomas dissents laying out that discriminating based on race is always wrong, it is invidious, and it hurts the supposed beneficiaries of the discrimination. Those early dissents have now become majority opinions of the court as the court has followed the journey traced by Clarence Thomas's opinion. That is one of the areas I think he's had an enormous impact. And I remember writing columns back in the 90s about his dissents. There was one famous one, extended dissents on racial gerrymandering, for example.

6:26And I remember thinking it was a clarion call. I remember thinking, well, that's nice at the time, but I don't know that it'll ever prevail. And of course, this last year in Louisiana, it prevailed with a 6-3 majority. A couple of us once interviewed Justice Alito. a couple of years ago. And of course, there are originalists and there are originalists, right? There are shades of difference in originalist jurists. And Justice Alito said that, we asked him about his difference with Justice Thomas. He says, well, I guess I'm a more pragmatic originalist, whereas Justice Thomas takes the more pure, literal approach to the Constitution.

7:06What do you think of that distinction? Look, I think that's right. That was much of the impetus for the title of the book. going further, because in Justice Thomas's opinions over and over again, he says, I would go further. And I talked to him about why, about his approach to jurisprudence. And I will say, Paul, I tried to get him to be introspective and to look back and analyze the impact of his jurisprudence. And he was absolutely loathe to do so. And he has a very workmanlike approach to the job. And so there were two analogies he used to crafting an opinion. One, he said, it's like building a house.

7:42And he said, you start with the foundation and the foundation needs to be strong and it needs to be level. You begin framing the houses and the framing needs to be straight and the angles need to be square. And he says, if you don't do that, then the house will lean and ultimately it will fall. That's how he viewed it. Very matter of fact, each case he sits down and he looks to, okay, what does the language of the constitution say? What does each word say? What does that mean? What was it understood to mean? And he reads voraciously. He reads history. He reads history of the Reconstruction, one of the most interesting exchanges I describe in the book.

8:17He says he doesn't think anyone can understand constitutional law today without really understanding reconstruction. The time period after the Civil War, when the 13th, 14th, and 15th Amendments were adopted, that period of reconstruction, understanding it, he thinks is critical to understanding how to interpret, in particular, the 14th and 15th Amendments, which are two extraordinarily important amendments, protecting equal protection and due process and the right to vote and the privileges or immunities of United States citizens. So the other analogy he used is that of plowing a field. And he was raised in abject poverty in Georgia, in rural Georgia.

8:57And one of the things his father would have him do is plow the field on the farm. And he said, look, when you're plowing the field, each of the rows has to be straight. And if your first row is off, every other row will be crooked as well. And he used that analogy to explain. I asked him, Why is it that you are the most willing of any justice who has ever served on the court to overturn precedent? And that's why he said it was, because if the precedent is wrong, then everything that follows it is wrong. And I recount an exchange that Justice Thomas had with Antonin Scalia, where there are a number of precedents that Thomas thought were wrong, that he would overturn, that Scalia would say, look, it's water under the bridge.

9:39And at one point, Scalia goes to Clarence and goes, Clarence, you're tilting at windmills. And Thomas, in mock seriousness, goes, Nino, windmills are dangerous. And then as he's telling me the story, he had one of those big, deep laughs as he's belly laughing, telling that story. But what's interesting, Paul, he has written descents, ate one descents in many instances, his lonely dissents, and over the years and over the decades, more and more of those dissents end up becoming majorities. For example, one of the most consequential dissents he wrote was in the case of Kelo versus City of New London, Connecticut.

10:20In Kelo, the City of New London - Five-four decision, five-four decision. Five-four. His view, unfortunately, did not prevail. But in that case, the City of New London wanted to take the family home of Suzette Keela, an older lady. She had lived in her home for decades. It was a modest home, but she loved that home. And the Fifth Amendment provides that government can take private property for public use, provided they give just compensation. Now, public use means what it says. It means the public uses it. It means that the government can take private property to build a road, to build a freeway, to build a library or courthouse or a school, something the public is using that's permissible.

11:03Over the years and over the decades, the court has changed the tests and it's essentially changed the words public use into public purpose. Purpose is much broader and more capacious. And in this instance, New London was not going to use her home for anything. Instead, they wanted to take her home to give it to Pfizer, the giant pharmaceutical company, for a parking lot for a new office complex they wanted to build. And Justice Thomas wrote a masterful dissent where he said, the court was wrong decades ago when they abandoned the words of the Constitution public use and instead invented this new and wrong test of public purpose.

11:41And he argued we should overturn that. And because this is not a public use, they can't take her property. Now, he did not win, but it's a great example, I think, of winning by losing because his argument was far more persuasive. States across the country, including my home state of Texas, have codified the standard that he put in the Kelo dissent of requiring public use. And I'll make a prediction, Paul. I believe if a case makes it to the court in the next few years, challenging Kelo and arguing that the public use test should be followed, I think this court would adopt the reasoning of Justice Thomas in dissent.

12:18And I think that will become the law of the land in the next few years. I certainly hope so, because it was one of the court's really worst decisions, certainly on property rights, but I would argue on other matters as well. We are going to take a break. And when I come back, I'll have more with Senator Ted Cruz and his new book on Justice Clarence Thomas. Congress has talked about permitting reform for decades. Now it's time to actually do it and secure our affordable energy future. Pass permitting reform now. Paid for by the American Petroleum Institute.

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13:30There's a lot of fun stuff in the newsletter that you can only read in the newsletter, and I don't want you to miss any of it. Sign up for free expression today. We'll see you in your inbox. Welcome back. I'm Paul Gigo here on Potomac Watch, your daily podcast of Wall Street Journal Opinion. and I'm here with Senator Ted Cruz. Speaking of dissent, of course, I know the justice has said to me more than once that the justice in many ways he most reveres is John Marshall Harlan, the first, the lone dissenter in Plessy v. Ferguson in the late 19th century, which of course justified separate but equal treatment under the law and has since gone away.

14:12But there's a great example of how a dissent can become the majority position over time. And that's impressive. You know, I would have just mentioned another case, the Broome case on gun rights, where Justice Thomas has played a critical role at the court in essentially filling out what the Second Amendment's right to bear arms for individuals means in practice. And slowly, one by one, cutting down state laws that limit that right? It has. And Justice Thomas on the Second Amendment, again, has been pivotal. I was actually a law clerk in 96, 97, when the court decided the Prince and the Mack case, which were the first cases where Justice Thomas wrote a separate concurrence, arguing that the court should go back and revisit its Second Amendment jurisprudence, which had gutted the Second Amendment for the better part of two centuries.

15:08And Justice Thomas argued the court should revisit it and hold explicitly that the Second Amendment protects an individual right to keep and bear arms, which the plain text of the language does. That ultimately became the Heller case, Heller v. District of Columbia. And that case I know very, very well because I represented 31 states in the Heller case before the court, arguing for the court to do exactly what it did, which is protect the individual right to keep and bear arms. Bruin, as you noted, put additional teeth into the substantive test. And actually, City of Chicago versus McDonald, Clarence Thomas wrote an incredibly important opinion.

15:52So Heller was in the District of Columbia. the District of Columbia is a federal enclave. And so Heller was decided saying, okay, this applies to DC, but it was an open question. Does it apply to all 50 states? And in order to apply to all 50 states, look, as it was written, the Bill of Rights only applied to the federal government. It did not apply to the states. If you look at the First Amendment, the First Amendment begins with the words, Congress shall make no law. It said nothing about what the states could do. Now, what happened, I mentioned before the importance of Reconstruction and the 14th Amendment.

16:29After the Civil War, Congress passed and the states ratified the 13th Amendment ending slavery, the 14th Amendment protecting equal protection, and the 15th Amendment protecting the right to vote regardless of race. And the 14th Amendment has been used as the vehicle for what's called incorporation. Incorporation is simply the idea that the court has taken most of the Bill of Rights and said they apply to the states as well. So today, a state government cannot restrict your free speech, cannot restrict free press, cannot restrict the right to assembly. Before the Civil War, a state government could.

17:07Incorporation is how they do so. And what Justice Thomas did in the McDonald decision is concluded that the Second Amendment should be incorporated against the States, but he actually goes back and researches. He does so under what's called the Privileges or Immunities Clause of the 14th Amendment. And he goes and researches why did they write this? What did the framers of the 14th Amendment understand and believe? And in particular, he chronicles how immediately after the Civil War, you had bands of marauders, you had precursors of the KKK, who would come to freed black men, freed slaves, and they would disarm them.

17:44And laws seeking to disarm them meant that those freed slaves could be victims to lynching and all sorts of abuse. And Justice Thomas goes through the history and said, look, this was designed to say that the privileges or immunities of a U.S. citizen, that includes defending yourself, defending your home, defending your family, that includes the right to keep and bear arms. And it's a deep historical opinion that I think is by any measure one of the most consequential opinions Justice Thomas has ever written. So Justice Thomas, 78 years old. You say in your book, you don't know how long he will serve.

18:21I remember him telling me around the time of his confirmation that they were going to have him around for, he was about 40. They're going to probably have him around for another 40, God willing. But nonetheless, there's an issue of what happens when he does retire from the court. And Justice Alito is only one year younger, though it seems like that 6-3 majority now is solid, we know it can easily vanish. Now, let's say that the Democrats take back the Senate in November, which is a very real possibility. And then you get a resignation or, you know, tragically some health issue. Would you think the Democratic Senate would confirm any Donald Trump nominee?

19:04I don't, Paul. I think the Democrats in the Senate have gotten so radicalized. Look, when it comes to the court, almost every one of the Democrats is advocating for packing the court, for adding four new left-wing justices to immediately flip the outcomes of every contested decision. I think if the Democrats take the Senate, which I hope and pray they do not, I think we will see essentially all confirmations grind to a halt. I think that there's a cabinet vacancy. I think Senate Democrats will not allow it to be filled. I think sub-cabinet vacancies will grind to a halt. And I also think judicial vacancies, if there's a vacancy or even two or three on the court, I think a Democrat Senate would leave those open for the entire two years of the rest of the Trump term.

19:49That is simply how radical they've gotten. I also think they will refuse to fill lower court positions, which is a massive break from past practice. In past practice, when you had a president of one party and a Senate of the other, you would continue to confirm judges. Now, you would end up having a check and balance. So there were periods where, for example, I was in the Senate and Obama was president or Biden was president. And when we had a Republican majority in the Senate, we could push back quite a bit and end up with nominees who were not nearly as left wing. But we nonetheless processed nominees.

20:23That was true in the first Trump term as well. I don't think it'll be true next year. So I think the stakes of this election are massively high on many fronts, but especially the judiciary. Yeah, you're talking about the appellate courts, too, the federal appellate courts not being confirmed confirmations, which they would want to keep these openings so that a Democratic president, if wins in 2028, be able to fill all those. So the stakes are very high. But what it means from the point of view of both Justices Alito and Thomas is, I hope they're eating their Wheaties, man. I hope because they may end up having to serve quite a long time if they don't want to be replaced by a Ketanji Brown Jackson, who is the most recent Democratic appointee.

21:07We are going to take another break. And when we come back, I'll have more with Senator Ted Cruz, including whether or not he might want to sit on the Supreme Court someday. Congress has talked about permitting reform for decades. Now it's time to actually do it and secure our affordable energy future. Pass permitting reform now. Paid for by the American Petroleum Institute.

21:34Don'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 Gigo here on Potomac Watch, and I'm talking to Senator Ted Cruz about his new book, Going Further, on Justice Clarence Thomas. As you look at the court, Senator, you know, much of what has happened on the court in recent decades, I would view as a kind of constitutional cleanup proposition. Yes. taking the excesses, the diversions from the Constitution, as I read it, that have occurred over the last, in some cases, 90, 100 years, and adjusting it back to their original meaning.

22:27But a lot of that work's been done. It's been done on race. It's been done on, in some respects, on separation of powers, the presidential appointment power, for example, religious liberty. What else needs to be done? You mentioned Kelo, the property rights case, But what else needs to be corrected here? Where do you see this court going from here on out? You know, I don't know that the court is aggressively looking to find cases. Part of the nature of our judicial system is that it originates with cases and controversies. And cases and controversies make their way to the court. And they decide them.

23:01So I think if it's presented with issues, the court will decide it. I mentioned Kelo. I think the right vehicle I've urged, for example, the Institute for Justice, which is a libertarian public interest law firm, to go find cases to challenge Kelo and get it up to the court because I think it would be overturned if it went up there. I'll tell you another case I think there's a good chance the court would overturn is the term limits case. So the term limits case, Justice Thomas wrote another masterful dissent. That was 5-4 as well. It dealt with a state that had adopted term limits for their members of Congress.

23:34and it went all the way to the court. John Paul Stevens wrote the majority opinion, and he concluded that no, states cannot set term limits for members of Congress. Clarence Thomas wrote an incredibly comprehensive, masterful dissent. It was one of the very first big, serious scholarly dissents that he wrote as a justice. He's written many since then, arguing that under the principles of federalism and the 10th Amendment, that the states had the authority to do this and nothing in the Constitution prevented it. I think if an appropriate case challenged that, I think a majority of the court would agree with Justice Thomas's dissent in term limits as well.

24:11I hope that we see states teeing that up again and creating a vehicle for it. But look, you were right that Justice Thomas and Justice Alito, neither one of them are spring chickens. Thankfully, they're both healthy. I do not think Justice Thomas is going anywhere, anywhere soon. He is enjoying what he was doing. There was a lot of speculation this past summer that Justice Alito might choose to step down. Obviously, he did not. And the history of the court, each justice decides when he or she will leave. I'm with you. I'm praying both of them are healthy and strong. I think this is the best Supreme Court we've had, certainly of our lifetime.

24:50Without a question, and it's not even close, in my view. I mean, by far, maybe the best in the last hundred years. You have a contingent of five or six justices who are willing to be faithful to the Constitution with a consistency we've never had. Although, interestingly enough, this is not Clarence Thomas's favorite court. Clarence Thomas's favorite court is the court back 30 years ago when I was clerking, the court that had Chief Justice Rehnquist and Sandra Day O 'Connor and Scalia and Kennedy. And even though that was a much less conservative court, it was a very collegial court where they liked each other.

25:28They laughed. You know, there's one exchange I can't recount in the book where Scalia and Ruth Bader Ginsburg were trying to get Thomas to go to the opera with them. They loved opera. And he kept saying no. And they said, why? And Thomas said, Nino, it's not that I don't like opera. It's that I don't like the people who like opera, which is a very Clarence Thomas thing to say. Yeah, well, and those personal relationships obviously matter to the justice. And I know he has said in other forums that the court is not as collegial now as it has been in the past. Something that he regrets will leave the personalities out of it.

26:05But I think you can, based on their public comments, figure out which justices are sharper edged in some of their personal relationships. I just want to ask you, I know you've answered this elsewhere, but I wanted to ask you for this audience You have no interest in becoming a supreme court justice if asked. Is that true? I do not. My answer is a no and you know, paul That surprises a lot of people because a lot of my career has been in and around the court and I revere the institution It's incredibly important institution. The reason that I don't want to be a judge Is I don't want to do the job of being a judge a principled judge stays out of political fights, stays out of policy fights.

26:47And if I were ever a judge, that's what I'd do. I don't want to stay out of those political fights. I don't want to stay out of those policy fights. And so I want to be part of nominating and confirming lots of good, principled constitutionalists to the court. I don't want me to be one of them. And if you want to be in political fights and policy fights, the right place to do it is in the elected branches of government where I am right now. And you look at some of the victories that we have had in the last couple of years. Last year, with the working families tax cut, I wrote major portions of the working families tax cut, including the Trump accounts, which may be the single most consequential element of that tax plan.

27:26I wrote that. If I were not in the Senate, there would be no Trump accounts, and the kids of America would not have investments in the stock market that will soon total in the trillions of dollars. School choice, the federal school choice credit that kicks in next year, that's going to unleash tens of billions of dollars of new scholarships for kids in K-12 education. I wrote that. If I were not in the Senate, if I were on the court, we would not have that school choice program. And so I think we are winning big victories that matter, that matter for 32 million Texans and matter for Americans across the country.

28:01You know, I will say the question has not been hypothetical, that three times with all three vacancies that occurred in the first Trump term, President Trump talked to me seriously about the court, and I told him no three times. I want to stay in the fight, and that's what I intend to do. And you are considering a run for president, aren't you? You know, there will be a time for that conversation, but that time will be after the midterms. What I'm doing right now is focusing on helping Republicans hold the Senate, hold the House. It is a battle. I'm spending a ton of time on the road campaigning for Senate candidates all over the country.

28:37I do think more broadly, Paul, and you and I have talked about this, we have a real battle in our party about who we are and what we believe. We have a divide economically. Are we a small government, free market, conservative party? Or are we a big government nanny state party? That is really foundational and divide the journal is intimately familiar with. There's also a foreign policy divide. Are we an isolationist party that wants to withdraw from the world, or do we believe in American leadership in the world? That also goes right to the core of who we are. And so I fully expect in the next couple of years, we're going to have that debate.

29:16And I think it's a debate that matters. But I think right now, we're just a few weeks out from the midterms. And so my focus is on trying with all my might to hold on to the Senate and House for the midterms. All right, Senator Ted Cruz, I think our listeners just heard that the senator is going to be part of those debates in one way or another. Thank you for joining us, Ted Cruz. Going further, the incomparable Clarence Thomas. Thank you all for listening. On Potomac Watch, we're here every day. Congress has talked about permitting reform for decades. Now it's time to actually do it and secure our affordable energy future.

29:53Pass permitting reform now. Paid for by the American Petroleum Institute.