He and David talked for over an hour; I mostly listened. At the end, Justice Thomas wanted David to come clerk for him, but David said he didn’t want to pursue law (today, he’s a private-equity investor instead).
“Don’t you want to be a lawyer?” Justice Thomas asked him.
“No, no,” David responded, “I leave that to the smart people.”
“So do I,” Justice Thomas quipped in response.
I laughed so hard my ribs hurt, and Justice Thomas’s booming laugh echoed throughout his chambers. Two of the smartest men on the planet, both black conservatives, having the humility to make self-deprecating jokes spoke volumes about who they were.
A second Justice Thomas story involved my co-clerk, Rick Garnett, who had worked the previous year as a law clerk in Little Rock, Arkansas. There, he and his wife Nicole had befriended and tutored a young African-American boy named Carlos. The boy had never left Arkansas before, but Rick and Nicole paid to fly him up to D.C. Rick emailed all nine chambers at the Court, saying that this young boy would be in town and asking if any of the justices would be willing to meet with him. Two offices responded—those of Justices Ruth Bader Ginsburg and Clarence Thomas.
Ginsburg is an incredibly talented lawyer and jurist, and it was very kind of her to meet with Carlos, but her prim demeanor is that of a legal librarian, and so it was difficult for her and the young boy from rural Arkansas to connect. Clarence Thomas understood the world that Carlos had come from.
At the end of their two-hour conversation, Carlos observed that Thomas was a Dallas Cowboys fan. (Thomas had a framed picture of himself with quarterback Troy Aikman in his office.) The kid was impressed—that was way cooler than the Supreme Court—and Thomas noticed. So Thomas rose from his chair, walked to his desk, and showed the boy a Super Bowl ticket, encased in Lucite, and signed by Cowboys running back Emmitt Smith. He handed the ticket to the young man.
“I’m going to give you this,” Thomas said. “But I want you to promise me that you will get A’s in school next year.”
The young man, astonished and wide-eyed, nodded in agreement.
It was one of countless stories of random acts of kindness by Justice Thomas that the media never reports. But it’s who he is, because he remembers where he comes from.
Returning to his Zelman concurrence, Justice Thomas elaborated on why no civil rights issue is more pressing than school choice:
While the romanticized ideal of universal public education resonates with the cognoscenti who oppose vouchers, poor urban families just want the best education for their children, who will certainly need it to function in our high-tech and advanced society. As Thomas Sowell noted 30 years ago: “Most black people have faced too many grim, concrete problems to be romantics. They want and need certain tangible results, which can be achieved only by developing certain specific abilities.” Black Education: Myths and Tragedies (1972). The same is true today. An individual’s life prospects increase dramatically with each successfully completed phase of education.
Despite the incredible stakes for schoolchildren across America and despite the fact that school-choice programs allow parents and students (not government) to make their own choices, four Supreme Court justices voted to strike down the Ohio school-choice program.
In June of 2020, the Court decided Espinoza v. Montana Department of Revenue, another major victory for school choice. Montana had established a tax-credit program for low-income children to be able to attend the school of their choice, and the Montana Supreme Court struck that program down pursuant to a provision of the Montana Constitution. That provision was a so-called “Blaine amendment,” modeled after the failed federal amendment introduced by Speaker of the House William Blaine in 1875. In the years that followed, as a result of a virulent outpouring of anti-Catholic bigotry, thirty-eight states adopted Blaine amendments into their state constitutions, each prohibiting any tax dollars from going to “sectarian” institutions.
Writing separately, Justice Alito explained, “a wave of immigration in the mid-19th century, spurred in part by potato blights in Ireland and Germany, significantly increased this country’s Catholic population. Nativist fears increased with it. An entire political party, the Know Nothings, formed in the 1850s ‘to decrease the political influence of immigrants and Catholics.’ ” Alito detailed the sordid history of Blaine amendments and how the Know Nothing party was “in many ways a forerunner of the Ku Klux Klan.” Personally speaking, since my mom’s ancestors were among those Catholics fleeing the Irish potato famine and coming to America in the 1800s, that history has a particular resonance with me.
In Espinoza, the Court reversed 5–4, striking down Montana’s Blaine amendment and upholding the Montana school-choice program. The Court ruled that states don’t have to create school-choice programs, but, if they do, the First Amendment does not allow them to exclude religious schools. Government cannot single out and exclude people of faith. Tragically, just as with Zelman, four justices were fully prepared to dismantle the Montana program and remove that option from Montana school kids.
On the mantle in my Senate office sits a bust of Dr. Martin Luther King Jr. A few feet away, on the bookcase, is a framed picture of hundreds of Cleveland schoolchildren—mostly low-income African-American and Hispanic children—holding hand-written signs in front of the Supreme Court on the day Zelman was argued. As I sit at my desk, I directly face that bookcase and often look at that picture and reflect on the kids whose future school choice is all about.
Today there are sixty-five school choice programs in twenty-eight states. Over 500,000 students benefit every year from vouchers, tax-credit scholarships, and education savings accounts. We need many, many more, and I will continue to fight hard to expand choice for every child in our nation.
Four justices were prepared to strike down Ohio’s program, Montana’s program, and virtually every other school choice program in America, taking away the educational options and—in a very real sense—the
