Episode Summary
Utah State University hosted the second annual Presidential Forum on Conflict & Conflict Transformation with special guest retired Judge Thomas B. Griffith. This year’s forum addressed the crisis of U.S. political polarization and the erosion of trust in democracy.
In this episode, USU Interim President Alan Smith and Griffith explore how the Constitution could be used as a tool to guide the nation toward unity. Griffith draws from his experience as a federal judge on the U.S. Court of Appeals for the D.C. Circuit, chief legal officer of the U.S. Senate, and the general counsel at Brigham Young Univesity.
Guest Biography
Thomas B. Griffith graduated summa cum laude at BYU in 1978 and earned his law degree from the University of Virginia School of Law in 1985. He began his career in private practice before he served as Senate Legal Counsel. He later became general counsel at BYU before being appointed by President George W. Bush to the U.S. Court of Appeals for the D.C. Circuit in 2005. Griffith served on the court until he retired in 2020. Since retiring, Griffith has stayed active in legal and public service. He was appointed by President Joe Biden to the Presidential Commission on the Supreme Court and has served as a mediator in high-profile federal disputes.
He currently is a lecturer on law at Harvard Law School, a fellow at BYU’s Wheatley Institute, and special counsel at Hunton Andrews Kurth. His contributions to law and democracy have earned him various honors such as a Lifetime Achievement Award from “The National Law Journal” and the Defender of Democracy Award.
Full Episode Transcript
Alan Smith 00:00
Hello and welcome to Future Casting with Utah State. I'm Al Smith, interim president of Utah State University and your host. We're recording just ahead of the second annual President's Forum on Conflict and Conflict Transformation. This year's discussion focuses on navigating political polarization and the role of constitutional principles in addressing division. I'm honored to be joined by Judge Thomas P Griffith. This year's featured guest Judge Griffith will share how the U.S. Constitution's principles can serve as a pathway to addressing the polarization in this country. Judge Griffith had an impressive career in law and public service. He served as a U.S. Circuit Judge of the United States Court of Appeals for the District of Columbia, circuit from 2005 to 2020. Currently, he is a lecturer at Harvard Law School, a fellow at the Wheatley Institute at Brigham Young University, and special counsel in the Washington DC Office of the law firm, Hunton, Andrews, Kurth. Judge Griffith, it's an honor to have you here. Thank you for joining me.
Thomas Griffith
Thank you. It's an honor to be here.
Alan Smith
So let's begin with our questions. The forum's purpose is centered around conflict transformation and fostering open minded communication. From your perspective, how can institutions like Utah State University help address the significant challenges in America today?
Thomas Griffith 01:21
Well, first of all, let's, let's recognize that it that it can, and that it should, and that it is doing so, which is wonderful. I think the universities of our country, look, look, we have the finest higher education system in the world. It's the envy of the world. And when we train the sites of our colleges and universities on critical problems and challenges for the nation, they succeed. They always have. They always have. So I think that it's colleges and universities today that have to be leaders in teaching our citizens our future leaders, how things work under the Constitution, because it's a very particular approach to government that isn't a natural one. It's something that needs to be learned and practiced. And I think I can think of no better setting to do that, and the university, a setting where ideas are welcome. Disagreement is encouraged. These are all things the Constitution wants us to have. They want the Constitution anticipates that we'll be thinking people who will disagree and argue about the best way forward. Universities are really good at that. They've proven that over 1000 years of their success to the extent that universities can also teach our students that the best way to disagree is to do so respectfully, to value the thoughts of another and then to critique them. There are bad ideas out there. They need to be critiqued, but to be done so in a way that's respectful, that treats the person with whom you're disagreeing with with dignity. I can't think of any better setting to do that in university, because you pull people together from all walks of life, from all corners of the nation in the world. You put them in a in a setting on a campus, and you you can teach them how to get along even though you disagree. So so really, I actually think the chief responsibility for doing this lies with the universities. And from what I've seen of what's going on here at Utah State, I applaud it. I hope that all universities will follow your example and make this a priority. Make this — an indispensable part of an education is to learn how to disagree with people and yet to do so respectfully.
Alan Smith 03:46
Thank you so much. You've spoken on the foundational principles of the Constitution, being negotiation and compromise. In today's polarized political climate, how can we foreground and apply these principles?
Thomas Griffith 03:59
Well, first of all, it's it's recognizing that that's what the Constitution does. You know, in my teaching, when I asked the open ended question of my students, so what's the function of the US Constitution, reflexively, and I think accurately, they answered, protect our rights. And that's true. I mean, and thank goodness we have the rights that we have have that are protected in the Constitution. And so that answer is a correct answer, but it's an incomplete answer, because the constitution does a lot more than that. You know, Justice Scalia would give a standard stump speech in which he would say, I love the Bill of Rights, but, you know, every country in the world seems to have a Bill of Rights. And then he would point out that the Soviet Union had the most beautiful Bill of Rights you've ever seen. And he said, having a Bill of Rights is not enough. The key, he thought, to the success of the American Constitution is in the separation of powers. Now that's an abstract concept. What does it mean? It means that for the framers. Of our Constitution, they understood that just as important as getting the right result through government was how you go about getting the right result. Who decides an issue is every bit as important as what the decision of the issue is. So process meant everything to them. It wasn't just getting the right result, it was getting it was getting it in the right way. And they created this really complex way of passing laws and carrying them into practice. It's not efficient. If you're looking for efficiency, don't come to the US Constitution. Yeah, they but what they were looking for was a process by which you have to sit down and negotiate and bargain with people who disagree with you. You have to sit down, negotiate and bargain to come to the result that you that you both are willing to accept. And the framers thought that that process of requiring citizens to do that would change them, would make them a little more accommodating, would make them kinder and gentler, would make them more appreciative of their fellow citizens, who had very different views than they did. But when you sit down at a table and bargain and negotiate with somebody, when you when you're there to listen to what they value and then explain what you value, that's magic, that communication between people who have differing ideas, that that creates a type of unity. You may not be unified in in what you think the right course of action is, but you're unified in your action. You've decided we're going to do this, we're going to do this together. That creates a different type of citizen than than other forms of government and so, so it's, it's critically important that we follow the Constitution's model for how to get things done. It's hard work. It's really hard work, but it's work that will change us and and make us little more accommodating, a little more understanding of people with whom we disagree, and that that's the magic, that's what we're going for. That's the more perfect union the Constitution talks about. It's not talking about a unanimity of ideas that would be boring, right? It'd be awful. That would stop progress, right? If everyone just agreed on same set of ideas. But it's talking about a process of what — the Constitution answers the question, how do you get along with people with whom you disagree? That's the big question the Constitution answers. And in saying that, I'm borrowing from the works of a scholar who I admire a great deal, Yuval Levin, and that's that's his that's his point, that the Constitution is designed to answer the question, how do you live with people with whom you disagree?
Alan Smith 07:42
How are we answering that question today?
Thomas Griffith 07:44
Not well at all. In fact, social science research tells us that the polarization we're experiencing today is actually different than polarization we've experienced in the past. I grew up in the late 60s and early 70s. There was a lot of polarization. Then, right? There were street protests, there was violence. So it's not exactly like, you know, we're gonna go back to the 60s or 70s, where everything was just wonderful, but the polarization we're experiencing today is actually different and worse than that, because the new element is and political scientists have a fancy phrase for this. They call it affective polarization with an A effective polarization, and what that means is, what's driving a lot of our politics today, most of our politics today, is hatred for the other side. It's not just that I have ideas about tax policy that I think would be beneficial to the country. It's not just that. It's that, no, I hate the people on the other side, that the levels of enmity that are being detected in the American population right now highest that we've ever been able to detect. Now, in fairness, I don't think there were social science research going on in 1859 to see that we don't have compared, we don't have a comparison that far back, but for the time that we do, last 30, 40, 50 years or so, this is the worst. In fact, social scientists tell us that the level of enmity between Republicans and Democrats in America today is comparable to the level of enmity between Protestants and Catholics in Northern Ireland during the Troubles.
Alan Smith
Okay, that's significant.
Thomas Griffith
We don't, we don't normally think of ourselves that way, right? But that's, that's the space that we're in right now. So we got a big problem. We got a big problem.
Alan Smith 09:24
So as we think about the concept then of negotiation, I often think about, you know, sides staking out a space at the start of that process and coming to compromise. Would you say, then the the places are further apart and further apart than they've been?
Thomas Griffith 09:41
They seem to be. Here's — here's some good news. Let me mix put some good news in here. They certainly seem to be when, when you're dealing with the most vocal folks, the folks who fill the airwaves, the folks are active in social media. Research has shown those tend to be people on the extreme. Of either. There's a wonderful organization out there called More in Common, and they've done a fair amount of research. They just, they're publishing reports all the time. They just did one within the last month or so that's quite significant. And they claim that in their research, they find that that when you can, when you can talk to people away from these charged environments, it turns out that there is, there really is a large group of people in the middle who agree on a lot of issues, a lot of issues. So the hope is that we can play to those people.
Alan Smith 10:36
And I was going to ask about that group. You know that — if we want to call them the political center, or, you know, the independent, whatever label we might want to give to that group. How do they find voice in this? How do they stake a place at the start of a negotiation?
Thomas Griffith 10:50
So I think part of the challenge is that a lot of those folks are not deeply involved in the process. Okay? They're tired of it. Social science data, again, shows that, like, like, over 90% of Americans are sick and tired of our present circumstance. That you know you've heard the phrase The exhausted majority? Yes, so, so I think, I think a lot of these folks are exhausted, and they're not participating. They may be voting and stuff, but they're not participating in the conversation. So they don't feel they don't have a voice that few people are speaking on their behalf, and they're not deeply involved in what's going on because they're so tired of it. They're going about living their lives in good ways, doing meaningful things with friends, family, community, but they're not deeply engaged in the present political moment because it's so exhausting for them so but that doesn't answer your question, how to reach them? I don't know the answer that, but we're trying. Lots of people are at. The good news is there are lots of people out there trying to reach the folks and find common ground. And even if they don't find common ground in a particular policy solution, find common ground in the idea that even though I disagree with you, you are a fellow citizen.
Alan Smith 12:06
Right. Back to the process.
Thomas Griffith 12:09
Exactly, exactly. To get it, we get — in my mind, we got to get the contempt out of it. It's, listen, I'm all for disagreement. I'm an American. I don't trust a decision made by any entity or person that isn't the product of vigorous disagreement, whether that's the White House, the Supreme Court, Congress, my pastor's office, my church headquarters. I want to know that everything has been thought through and has been argued over, right disagree. So we're not talking about getting rid of disagreement. It's just the way the disagreements are taking place. On the extremes right now are just so I mean, just, they're so filled with contempt. And just look at any social media feed that comes from major politicians today, and it's just filled with contempt. It's not that the judge is mistaken, it's that he's corrupt.
Alan Smith
Right.
Thomas Griffith
No, that's a big — I want people to say the judge is mistaken. You know, I wrote opinions. I want people to say, hey, Griffith, you really messed up on that one, because hopefully I can learn from it. But if you say Griffith, you're corrupt, you know it's gonna be real hard for me to want to —
Alan Smith 13:26
It's been personalized. It's not about the ideas anymore, it's about the judge.
Thomas Griffith 13:30
Exactly, exactly. And that that's what this is primary about, is getting, getting the contempt out of it. Let's get back to just arguing about ideas and not not casting doubt on our opponent's character.
Alan Smith 13:43
And I wonder if that contempt leads folks to start from a place of seeking capitulation rather than compromise.
Thomas Griffith 13:52
That's an excellent point.
Alan Smith
Would that be fair?
Thomas Griffith
That's an excellent point. One of the things about negotiation and compromise is that if it's entered into in good faith, you might find new solutions that you never thought of before. You might right. You know, both tables come to the party. They have different objectives. It may be that as they work things through and out, they come up with a new approach, a new idea. I mean, that's the best of all possible worlds that happens. But that does happen. I'm sitting in a state right now where that did happen in the Utah compromise, and that you know this Utah right now is a magnet for social science researchers and political theorists who are coming to this state to see how in the heck did you guys pull this off? And it's a real question, whether it's scalable, whether or maybe it's unique to Utah's unique culture. But the Utah compromise is granting the largest protections to sexual minorities in against discrimination in housing. Money and employment in the country, at the same time protecting religious liberty interests of those who have objections to that right. The fact that Utah was able to that Utah was able to pull that off, has caught the attention of a lot of people. So there's an example of people in Good Will sitting down with very different views, sitting down and finding a way to accommodate the other. And in both in, in that instance, both sides giving up a little, giving up a little to accommodate another. That's the morality of it. If you if you see, I mean the Constitution is not just about structures and process. It is, but it's about more than that. It's about a morality. It's about a morality that's based on an idea. Let's go back to the Declaration of Independence. You know that we are endowed by our creator with certain inalienable rights. If you really believe that, if you really believe that that person you're negotiating with has been endowed by his creator with certain inalienable rights, hopefully you're going to approach that person differently than you would, right, if it's just someone who you think has noxious ideas. So that's very much a part of this whole issue.
Alan Smith 16:21
And so how well can states and their political systems resist the federal context right now, which is becoming —
Thomas Griffith
Yeah, yeah, look, I —
Alan Smith
More polarized and challenging.
Thomas Griffith 16:33
Yeah. And everything has been nationalized, right? And local elections are — I mean, you hear these stories of local elections for county commissioners and school boards being affected by what's going on in Washington, DC. I mean, and, and not talking —
Alan Smith
It's not gonna be a local issue or the road —
Thomas Griffith
Exactly, exactly, you know. And you know, you know. Yeah, I hear where you're on potholes, where you are, where are you on Ukraine, you know. I mean this thing, and I'm not certain what can be done about that, because we live in a in a world where we have access to every everyone else, everything else that's going on, we know what's going on. So I think that's hard to do, but, but if this, if this is going to succeed, it's going to be at the state and local level. I don't none of us should be waiting for a white knight from Washington, DC, to save us from this. I don't think that's how this is going to happen. I think this is going to happen. If it does happen, it's going to happen at the local the level of people getting involved in their in their in the public life of their community. Because when you get involved in the public life of your community, the chances are you actually know that person from soccer practice, or you know them from running into them at Smith's or or they made me be a neighbor or a cousin of a third cousin. And all the all the social science research shows that it's a lot harder to hate somebody you know, or to hate somebody in the same room —
Alan Smith
Who's right in front of you, correct?
Thomas Griffith
— than it is online, than it is online. And so if this is going to work, it's going to be because local communities decide, you know, we want to go about this a different way. We want to go about this a different way.
Alan Smith 18:12
So earlier, you shared a little bit about separation and balance of powers. And so I want to ask a question. Being that you were a former federal judge, how do you see the judiciary's role in bridging political divides?
Thomas Griffith 18:27
So I think it's actually very critical. And here's here's why, because in in in the judiciary, there are rules by which you participate, right? And when you come into court, you treat your opponent respectfully if a lawyer were to call his opposing counsel corrupt or scum? No, that doesn't work. That's not allowed in the judicial system. And so the rules by which the judicial system works are pretty good rules for all of us to follow. What takes place in the judicial system is you make arguments that's good, but they are based on facts. They are based on evidence. You cannot come into court and spin a wild conspiracy theory that has no basis in fact. Well, that's a good lesson for all of us to learn as well. The last element I'll say is that the judges, as imperfect as we are, the judges that I worked with on the DC circuit for 15 years, took seriously their oath of office to judge impartially. I served with judges who had been appointed by presidents all the way from Carter to Trump and everyone in between. And I never once in my 15 years saw any of my colleagues make a decision that I thought was in any way based on their partisan priors. It just — I was looking for it.
Alan Smith
Yeah, right.
Thomas Griffith
Because. You read that's what goes on, right?
Alan Smith
Sure.
Thomas Griffith
And in 15 years, never once. Plenty of reasons, plenty of ideological differences about the role of the judge, how you read a statute, how you interpret the Constitution, lots of disagreement about that. And I would disagree with some of my colleagues, like, oh, I don't think you ought to read the Constitution that way. But it but it was never that they were sitting there thinking, oh, I want to help Clinton on this one, or I want to stick it to Trump. That thinking is just so foreign to the way the judges I know worked, and —
Alan Smith 20:33
Now, you work based on what comes in.
Thomas Griffith
Yeah, right, right.
Alan Smith
And I know that there certainly has been a bit of discussion about what constitutes a fact. In other words, there's debate about what's what's factual. Are you seeing that creep in to your world?
Thomas Griffith 20:50
No, no, no, no. We don't play no sort of game world. No, no, no, no. Counsel, give me the fact, right, and what's the evidence for it? And if you don't have evidence that you can support. Sorry, we don't. We don't engage that. So the point I was trying to make is, as I look at the judicial system, it's characterized by civility, characterized by argument. We want that. You always want to hear different sides of it, but, but that argument is always conducted civilly. It's always based on fact. It's always based in interpretation of law. And then when the judges go about doing their work, it's the same thing. It's the same thing. It's based in reason, based in law. And is, to the extent that we can, I think we succeeded, a lot of it not based on on partisanship. That's a pretty that's a pretty good I wish, I wish the American people could have seen what I saw on the DC circuit for 15 years. You know, media sometimes calls the DC Circuit the second most important court in the land, you know, right? By — by the way, I have no idea what that means, you know, and you know, my mother —
Alan Smith 22:02
Presume it means after the Supreme Court.
Thomas Griffith 22:04
Yeah, yeah, after the Supreme Court, but, but the idea that what is the ranking is that the sports writers and the coaches pool, I mean, we're not, we're not comfortable with that my mother, my mother loved that. My mother loved it and told all her friends, but, but it does. It doesn't. It doesn't mean much, but, but nevertheless, it was a, you know, it's a, it's a significant court, right? And I wish people could see what, what I saw there, because if they did, they would be really impressed with with the federal judiciary. Once again, not perfect, but they would come away saying, this is pretty good. I —
Alan Smith 22:37
So it's a nice counter, right?
Thomas Griffith
It is. That's the point.
Alan Smith
That's part of the system of balance.
Thomas Griffith 22:41
And I'm gonna take advantage of this particular moment to maybe riff on this a little, please, because our institutions are undergoing a stress test right now,
Alan Smith
They sure are.
Thomas Griffith
And a lot of politicians are being very critical of the federal judiciary right now. And I want to stand up and say, I think that's wrong. First of all, it's inaccurate. It's just inaccurate. And second, it it undermines public confidence in the judiciary. And if we lose that, we've lost a lot that. Here's a story. If you don't mind me, tell me, yeah. So I'm a political conservative. I was appointed by a Republican president, George W Bush, to the extent I could. I totally tried to get out of political thinking when you're a judge. So I no longer consider myself a partisan. But after I stepped down from the DC Circuit, the Biden White House asked me if I would join a commission that the White House was creating called the President's Commission on the Supreme Court. They was a commission that was going to look at the debate surrounding the role of the Supreme Court and analyze, analyze those, those arguments, and they wanted it to be bipartisan. And so I was one of five or six conservatives out of a group of 35 that that was on, that was on that commission. Was great. It was great. Experience, wonderful experience. Some people criticize the composition as saying, you know, only five or six conservatives out of 35 that's not very balanced. My response to that was, conservatives were better represented on that commission than in any faculty lounge in the country. So lots of vigorous discussion about the role of the court, the role of the Roberts Court. Are they doing the right thing or not? And I heard my standard speech in those meetings was I push back against my progressive colleagues who kept saying the Roberts Court is illegitimate, the Roberts Court is illegitimate, and I would push back on that. And I'd say, No, you just don't agree with their decisions. That doesn't make them illegitimate. Stop calling it illegitimate, because that undermines the. Public confidence. The story I want to tell is, I'm giving that speech, and one of the members of the Commission who is a political progressive fellow, named Walter Dellinger, has since passed away. Very distinguished constitutional law scholar and public servant who was a political progressive came to my defense and and he told the following story. He was the lawyer for the United States who argued before the Supreme Court the case that was called Clinton versus Jones. This was Paula Jones lawsuit brought against Bill Clinton where she claimed that he had sexually harassed her. The case was in front of the Supreme Court, whether, in the issue before the Supreme Court was whether you could pursue a case like that against a sitting president, or if you had to wait till after his term of office. Okay. Walter Dellinger argued the case on behalf of the government, on behalf of the President United States, and he lost that case nine to zero. He lost the case nine to zero. He tells the story that he was actually visiting a law school in China and lecturing at this law school in communist China when news came that the Supreme Court had ruled against him and the president nine to zero. And he tells the story that he announced that to his students to China, and none of them could believe that, none of them could believe that the Supreme Court would rule unanimously against a sitting president of the United States. And Walter said, even though he had lost that case nine to zero, he was never prouder of our judicial system right than that. So we have, this is our crown jewel, our judicial system. We I think we're duty bound to look for ways to support that system.
Alan Smith 26:50
Yeah, is it going to hold up to the stress tests?
Thomas Griffith 26:53
I think it will. I think it will. But what I worry about is I worry about politicians, and I worry about citizens who are leveling these, these charges of corruption and sure, judicial insurrection, judicial coup, because they disagree with some decisions that have been rendered right now. Well, you know what? Each of those decisions is going to be reviewed maybe three times. That's our system. If a judge gets something wrong, you have another set of judges look at it, and that's the process we're in right now. So I have a lot of confidence in the judges and in the process, so.
Alan Smith 27:24
And what role do you see for the judiciary and restoring public confidence in the rule of law and the system of government? Is there a place for that?
Thomas Griffith 27:32
There is, there is, and judges have a duty to be impartial and not to favor one side over the other because of their because of their political views. That's just a cardinal rule. You take an oath to God and before the citizens of the United States that you will be impartial. And so judges, judges need to do that. Sometimes judges don't. They're not perfect. Sometimes they don't, but every time a judge doesn't, that hurts the system and it feeds into the notion that they are just partisans wearing robes, right, and and my experience is that that they're not justice. Stephen Breyer served on the United States Supreme Court for 28 years. He wrote a lot of dissenting opinions, right, right? And yet, he writes and says that the just justices on the Supreme Court, even those with whom he disagreed, said they're not partisans and robes. They're not they're not looking for ways to help one party over another. He said, we have lots of disagreements about a lot of things, but that's not what is going on in in the Supreme Court decision, that's remarkable coming from somebody who lost a lot, right, right? Lost a lot. Be one thing if, if he was on the majority a lot and said that, but he lost a lot, he's saying, no, no, no, no, no, no, Clarence Thomas and I, I'm putting words in his mouth, but he would say this, if you hear Clarence Thomas and I disagree a lot, Justice Breyer would say, about how to read the Constitution. But you know what? I admire, Justice Thomas. He's my friend and and our disagreements have nothing to do with who we want to be president or not, nothing to do. They're all about how you interpret law. Justice Breyer says that. I think it's true, and I wish, I wish, I wish more politicians would recognize it.
Alan Smith 29:21
I was going to say, presidents nonetheless certainly try to create —
Thomas Griffith
They do.
Alan Smith
— a more partisan judiciary.
Thomas Griffith 29:25
And Senate confirmation hearings are, I'm sorry, it's a circus. It's an absolute circus. I agreed I was justice. Jackson asked me to introduce her to the Senate Judiciary Committee at her confirmation hearings, and that was treated by the media as something novel and unique. You know, I got a lot of atta boys and I got a lot of what in the world are you doing? But the point I tried to make is, you know, there was a time when there was nothing unusual about that Antonin. Leah was confirmed by this by the United States Senate. I think it was 98 to zero. Ruth Bader, Ginsburg, 96 to three, or numbers about that, vastly different viewpoints, and yet they both had this overwhelming confirmation presence that doesn't happen today. So something has changed. That's one of those stresses. Something has changed. And the question you have to ask yourself, Is that a good change or not? I think it's a bad change. Justice Barrett, a protege of Justice Scalia, didn't get a single vote from across the aisle. Now I look at that and I say, that's something's wrong. Something's wrong about it. I want to go back to the days when you would get an Antonin Scalia and Ruth Ginsburg who have different views. I think that's healthy for the country to have different views being being argued at the Supreme Court. So, yeah, so what can So, what can judges do? Judges can do their job and not, not appear to be partisans and ropes. And I think, from my experience, I think that's what they do. I think if you look carefully at the work they're doing, you won't say that they are partisans in robes. Justice Barrett has a great response to this. She said, You know, people say we're partisans in robes. She said, my answer is, read our opinions. Read our opinions. Now there's a problem with that. They're really long, and most of us don't have time to do that, but, but she's right. A bit of a legal background, a little bit, but actually not too much. These are actually pretty good writers we've got on the clock, and they're actually pretty good. But she's right, if you read the opinions and don't just rely on what social media is telling you or cable or talk radio or do you read it yourself? No, you're going to come away saying, this is a serious person who's struggling with a difficult issue. I require that of my students, I tell them you can't criticize a Supreme Court opinion in my course until you've signed an affidavit telling me you've read the opinion twice. Now, I'm joking about the affidavit, but the point is, no, you have to read it twice — because if you read it, if you read Justice Alito's opinion in Dobbs twice, you may disagree with his reasoning, but you're not going to come away saying, Oh, this is a man who's trying to oppress women. That's not what's going to —
Alan Smith
Right, right, it's not a corrupt —
Thomas Griffith
Exactly. And I say the same —
Alan Smith
— process to get to that position.
Thomas Griffith 32:22
I say the same thing to my conservative students. If you want to criticize the Supreme Court's opinion in Obergefell recognizing right to same sex marriage, read the opinion twice. Read Kennedy's opinion twice. You may disagree with it, but you're going to come away saying, Oh, this is a good person wrestling with a tough issue. He's not trying to destroy the traditional family. Stop saying that. Read the opinions, and I think you'll see that these are really good people wrestling with difficult issues. That's how they view one another. That's how the justice and Supreme Court view one another. They disagree passionately, but they all recognize what's going on is going on in good faith. It's not politics dressed up in robes. It's not. That's important. It's important that we understand that, that that's that's what's going on here, and it's a great thing.
Alan Smith 33:18
So good people, capable people, doing the best I can.
Thomas Griffith 33:22
All the ones that I met. You know, I live in Washington, DC. I'm on the DC Circuit. It's a small town. I just I have the good fortune of knowing each of the justices, some better, some better than others, but and I admire all of them now I disagree with several of them on very fundamental things, but the thought has never crossed my mind that they are anything other than patriotic Americans trying to do their best to understand the principles of constitution and to apply — to apply them.
Alan Smith 33:55
Well, let us hope that that holds up to the current stress testing.
Thomas Griffith 33:59
I think it will. It will, it will, among and between them, the question is whether the public and the pundits and the politicians will recognize what's going on, or if they will just think it's just political games.
Alan Smith 34:13
Sure, sure, sure. Well, step stepping back a bit as it relates to our daily lives, what steps can we take to engage with our communities, workplaces and even our personal relationships, to foster productive conversations about conflict? Yes, that's easy for everybody.
Thomas Griffith 34:30
That's the big question. That's the big question. Yeah, it's like I said, this is going to be solved in Washington, DC. It's gonna be solved in Logan. It's it's going to be solved in my hometown of Round Hill. That's where it's gonna be solved. So the first bit of advice I'd give, no one's gonna like to hear this, but can I say it anyway? Get all —
Alan Smith
We'll edit it out if it's that bad.
Thomas Griffith
Okay, if it's that bad. Listen, stop watching cable news, stop listening to talk radio. Don't get your information from social media. Now, no, no one's gonna do that, but I'm telling you all of those. Are curated forms of information that have a purpose, and the purpose is to get you angry. The algorithms are there. They figure out what will get you angry. There is not breaking news every 10 minutes in the world, except on cable. And the reason it's there is because it drives ad dollars. That's what it's all about. So if you watch cable, go ahead and watch it, but recognize you're being played. So the first thing starts with, where do we get our information from, and how do we how do we treat it? Okay? The next thing is to recognize that the person who disagrees with you is a fellow citizen, is a person that deserves dignity, because the Declaration of Independence tells us, or if you're a person of faith, it certainly tells you that, and so to treat them that way. Third thing is get involved in what's going on in your community, in the school board, there are lots of groups out there that work real hard at overcoming this toxic polarization. I'll just mention one that's active in this area. It's called braver angels. Braver angels is a grassroots organization that gets people together and teaches them how to have these discussions. And a Braver — a typical Braver Angels meeting, you'll have half red and half blue, and you'll talk about, you'll debate an issue under certain ground rules, about how we talk to each other and listen to one another, and and we've done — Braver Angels has done this thousands of times across the country. It turns out, no one changes their mind about the issue.
Alan Smith
Sure.
Thomas Griffith
The blues feel the same way about the issue, about guns —
Alan Smith
I think we've come to learn that, right?
Thomas Griffith
— and the reds feel the same, but, but, but most of the people there change their mind about the other people.
Alan Smith
Right?
Thomas Griffith
And that's the magic, that's the key,
Alan Smith 37:00
That's critical, right?
Thomas Griffith
Get the hate out of it.
Alan Smith
And that's an active process, as opposed to, you know, as you talk about watching cable news or consuming social media, that's that's more passive.
Thomas Griffith 37:12
Yeah, absolutely, yeah. So no, you're right. So there's certain things we shouldn't do, and there's certain things we should do, but the thing we should do is find ourselves, find yourselves in circumstance, in situations where we're with people who don't agree with us, right?
Alan Smith 37:26
Discomfort's a wonderful stimulator of growth and —
Thomas Griffith 37:31
But here's, here's the other thing. I'm told by that, by the experts, I'm told that when you're in that setting with someone with whom you disagree, don't try and persuade them. It's not going to work, right? And so what you do is you listen to them. You just seek understanding. Seek understanding. Right? Seek understanding. Don't try and persuade them. Now, if they ask you, what, you know, what do you think about that? Well, respond in a kind and gentle way. But the primary thing is, we're there to listen and to understand. That's the skill most of us, present company included, need to do better.
Alan Smith 38:07
We all need to work on it, always, right, lifelong process.
Thomas Griffith
Right, right.
Alan Smith
Absolutely. Well, is there anything that we've not covered in our discussion today that you believe we should consider as we navigate chasms and conflict in America today?
Thomas Griffith 38:20
No, I think, I think, I think we've covered the waterfront in many ways, but I'll add this. I think this is really critical at this moment. You know, I'm I'm not optimistic, but I'm hopeful. The forces that are dividing us are really powerful right now, and I think it calls about all of us to respond. But the surprising thing to me is the response doesn't call for us taking out our pocket copies the Constitution. I've got mine here pocket, and waving it and saying, This is my right. This is my right. That's that's important, but that's not what we need right now. What we need right now is pulling out your pocket copy of the Constitution and saying, I want to understand you. I want I want to be with you. I want to be in a country that's diverse. So I'll finish with this, our greatest president at the moment of our greatest national peril. Abraham Lincoln in his first inaugural address, states are have literally seceded from the Union. It's dissolving in front of him. Says that language, that's sort of American secular scripture. We are not enemies, but friends. We must not be enemies. Though passion may have strained, it must not break our bonds of affection. I notice, out in front of Old Main there are two statues, right? That's right, George Washington, Abraham Lincoln, George Washington, explained. On why the Constitutional Convention succeeded in the summer of 1787, he explained it to Congress. He said the Constitution was created because of the spirit of amity and that mutual deference and concession which the peculiarity of our political circumstances rendered indispensable. Amity, deference, concession. Washington said, those are the virtues that were exercised in Philadelphia in 1787 to give us the Constitution. Then Lincoln tells us what we need to do to keep it going, and it's bonds of affection. Those are the things we need to work on. Those things.
Alan Smith 40:36
Great reminders for us as Americans. Thank you very much, Judge Griffith, for sharing your expertise and hopeful message for us, we clearly have the tools to transform conflict in ways that can manage competing interests and strengthen our society. Let us hope that we proceed accordingly. Thank you.
Thomas Griffith
Thank you.
Alan Smith
And I'm Alan Smith, and this has been Future Casting with Utah State. Thanks for listening.
Future Casting with Utah State is a production of Utah Public Radio and Utah State University, sponsored by the Office of the President. Thanks to Justin Warnick for the theme music, the USU Marketing and Communications team, and producer Hannah Castro.
