[button link=”https:\/\/journals.law.harvard.edu\/jlpp\/wp-content\/uploads\/sites\/90\/2022\/01\/Fall-2021-No.-4-James-C.-Ho-22Be-Not-Afraid22.pdf” color=”red”] Download PDF[\/button]<\/p>\n
\u201cBe Not Afraid\u201d<\/strong><\/em><\/p>\n by James C. Ho<\/p>\n <\/p>\n In his three decades of service as a member of the Supreme Court of the United States, Justice Clarence Thomas has made countless contributions to the development of American law.\u00a0 But his greatest influence on our nation transcends any one particular area of jurisprudence.\u00a0 Perhaps the best way to capture Justice Thomas\u2019s most important impact on the judiciary\u2014and to celebrate his thirty-year anniversary on the Court\u2014is to recognize the twenty-year anniversary of an address he delivered to the American Enterprise Institute.\u00a0 See<\/em> Clarence Thomas, Be Not Afraid<\/em> (Feb. 13, 2001), available at<\/em> http:\/\/www.aei.org\/publication\/be-not-afraid.<\/p>\n His remarks should be mandatory reading for anyone who wishes to ascend to the bench\u2014as it is for each of my incoming law clerks.\u00a0 Justice Thomas not only defends originalism as the touchstone of sound judging\u2014more importantly, he explains why originalism requires not only intellect, but also character.<\/p>\n * * *<\/p>\n We all know that Justice Thomas is an originalist.\u00a0 And his remarks two decades ago certainly offered a powerful case for respecting the text and original understanding of the Constitution and the timeless wisdom of our nation\u2019s Founders reflected in our governing charter.<\/p>\n Moreover, in the years that followed those remarks, Justice Thomas\u2019s originalist vision for our Constitution has at least by some appearances begun to achieve widespread consensus.\u00a0 As well as it should.\u00a0 Because originalism shouldn\u2019t be controversial.\u00a0 Originalism isn\u2019t conservative or liberal.\u00a0 It isn\u2019t a commitment to any particular result or policy.\u00a0 It\u2019s simply a commitment to a process.\u00a0 It\u2019s about asking the right questions\u2014not about predetermining what the answers to those questions must be.\u00a0 It\u2019s about robust debate\u2014a debate that is not rigged to reach a particular outcome, or to favor one party or another, but one that allows us to faithfully follow our principles to their appropriate and logical conclusion.<\/p>\n It\u2019s also, at bottom, a commitment to intellectual honesty.\u00a0 A promise that we will engage with one another honestly, charitably, and in good faith about the law, about the Constitution, and about the proper meaning of words and provisions.<\/p>\n And lest we forget, every federal judge swears an oath to uphold the Constitution\u2014so being an originalist is really just part of the job description.\u00a0 Because being an originalist just means being faithful to what you\u2019re interpreting.<\/p>\n It should be hard to argue with any of this.\u00a0 So we should be pleased but perhaps not surprised that, about a decade after Justice Thomas\u2019s remarks, Justice Elena Kagan embraced originalism during her Supreme Court confirmation hearing.\u00a0 As she stated:\u00a0 \u201cSometimes [our Founders] laid down very specific rules.\u00a0 Sometimes they laid down broad principles.\u00a0 Either way we apply what they say, what they meant to do.\u00a0 So in that sense, we are all originalists.\u201d\u00a0 The Nomination of Elena Kagan to be an Associate Justice of the Supreme Court of the United States<\/em>, S. Hrg. 111\u20131044, at 62 (2010).<\/p>\n Justice Ruth Bader Ginsburg echoed that sentiment the following year, stating that \u201cI count myself as an originalist too.\u201d\u00a0 Ariane de Vogue, Justice Ginsburg Speaks About Gender Equality<\/em>, ABC News, Nov. 18, 2011.<\/p>\n And Doug Kendall, the founder and president of the Constitutional Accountability Center, channeled that same spirit that same year, when he called on his fellow progressives to \u201cembrace the original text of the Constitution and endorse a vision of the document in which the bedrock rules and principles contained in it do not lose their meaning over time.\u201d\u00a0 Doug Kendall & Jim Ryan, The Case for New Textualism<\/em>, Democracy, Summer 2011, at 67.<\/p>\n * * *<\/p>\n So what\u2019s the problem, then?\u00a0 If there is this broad consensus about originalism, at least as an intellectual matter, why do originalists continue to face headwinds?<\/p>\n It\u2019s because the central challenge for originalism today is not a matter of intellect, but a matter of intimidation.\u00a0 The biggest obstacle for originalists is not the lack of intellectual ability to uncover the right answer, but the courage required to stand up for it.<\/p>\n And it is on this point that Justice Thomas\u2019s remarks resonate most powerfully.\u00a0 Speaking not just as a judge but \u201cas a citizen who . . . is concerned because too many show timidity today precisely when courage is demanded,\u201d he shared insights from his first decade on the Court.<\/p>\n \u201cJudges do not cease to be human beings when they go on the bench.\u00a0 In important cases, it is my humble opinion that finding the right answer is often the least difficult problem.\u00a0 Having the courage to assert that answer and stand firm in the face of the constant winds of protest and criticism is often much more difficult.\u201d<\/p>\n He then quoted Alexander Hamilton, who wrote in Federalist No. 78:\u00a0 \u201cIt would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the constitution, where legislative invasions of it had been instigated by the major voice of the community.\u201d\u00a0 And he observed that \u201cthe trait that Hamilton singles out\u2014fortitude\u2014is fundamental to my philosophy of life, both as a judge and, more fundamentally, as a citizen of this great nation.\u201d<\/p>\n In theory, the work of a judge should be straightforward, simple, even boring.\u00a0 But in reality, it is not.\u00a0 \u201cA judge who strictly adheres to the rules of impartiality and judicial restraint is likely to reach sound conclusions.\u00a0 But as I\u2019ve said, reaching the correct decision itself is only half the battle.\u00a0 Having the courage of your convictions can be the harder part.\u201d<\/p>\n \u201cIn my humble opinion, those who come to engage in debates of consequence, and who challenge accepted wisdom, should expect to be treated badly. . . . Even if one has a valid position, and is intellectually honest, he has to anticipate nasty responses aimed at the messenger rather than the argument.\u00a0 The objective is to limit the range of the debate, the number of messengers, and the size of the audience.\u00a0 The aim is to pressure dissenters to sanitize their message, so as to avoid being subjected to hurtful ad hominem criticism.\u00a0 Who wants to be calumniated?\u00a0 It\u2019s not worth the trouble.\u201d<\/p>\n But \u201cby yielding to a false form of \u2018civility,\u2019 we sometimes allow our critics to intimidate us.\u00a0 As I have said, active citizens are often subjected to truly vile attacks; they are branded as mean-spirited, racist, Uncle Tom, homophobic, sexist, etc.\u00a0 To this we often respond (if not succumb), so as not to be constantly fighting, by trying to be tolerant and nonjudgmental\u2014i.e., we censor ourselves.\u00a0 This is not civility.\u00a0 It is cowardice, or well-intentioned self-deception at best.\u201d<\/p>\n \u201cThe Founders warned us that freedom requires constant vigilance, and repeated action.\u201d\u00a0 \u201c[We] must stand undaunted.\u00a0 That is required.\u00a0 And, that should be expected.\u00a0 For, it is bravery that is required to secure freedom.\u201d<\/p>\n * * *<\/p>\n I want to spend a few moments dwelling on one particular sentence from his remarks:\u00a0 \u201cIf we are to be a nation of laws and not of men, judges must be impartial referees who defend constitutional principles from attempts by particular interests (or even the people as a whole) to overwhelm them.\u201d<\/p>\n Justice Thomas is of course far from alone in invoking the metaphor of the \u201cimpartial referee\u201d to describe the work of judging.\u00a0 Chief Justice John Roberts famously observed that \u201c[j]udges are like umpires.\u00a0 Umpires don\u2019t make the rules, they apply them.\u201d\u00a0 Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States<\/em>, S. Hrg. 109\u2013158, at 55 (2005).<\/p>\n It is a powerful and evocative metaphor\u2014and in more ways than one.<\/p>\n Anyone who watches sports is well familiar with the phenomenon of home field advantage.\u00a0 In a fascinating book called Scorecasting<\/em>, the authors devote an entire chapter to the topic of home field advantage.\u00a0 See <\/em>Tobias J. Moskowitz & L. Jon Wertheim, Scorecasting: The Hidden Influences Behind How Sports Are Played and Games Are Won (2011).\u00a0 Based on extensive analysis, they conclude that home field advantage is a very real phenomenon, that the leading cause of home field advantage is the sound of the hometown crowd, and that the sound of the crowd can have a surprisingly profound impact on the psychology of the referees.<\/p>\n The lesson they draw is a simple one:\u00a0 Most people don\u2019t like to be booed.\u00a0 And as it turns out, most refs are no different.<\/p>\n As the authors explain:\u00a0 \u201cWe\u2019re convinced that the vast majority of, if not all, officials are upstanding professionals, uncorrupted and incorruptible, consciously doing their best to ensure fairness. . . . They are not, however, immune to human psychology, and that\u2019s where we think the explanation for home team bias resides.\u201d\u00a0 Scorecasting, ante<\/em> at 157.<\/p>\n Here\u2019s the authors\u2019 key insight:\u00a0 \u201cWhen humans are faced with enormous pressure\u2014say, making a crucial call with a rabid crowd yelling, taunting, and chanting a few feet away\u2014it is natural to want to alleviate that pressure.\u201d\u00a0 Id.<\/em> at 159.\u00a0 \u201cPsychology finds that social influence is a powerful force that can affect human behavior and decisions without the subjects even being aware of it<\/em>.\u201d\u00a0 Id.<\/em> at 157.<\/p>\n The book chronicles numerous studies involving a wide range of sports.\u00a0 But I think this one is my favorite:\u00a0 In a study conducted in 2001, one group of referees watched recorded soccer games with the sound on\u2014while the other group watched with the sound muted.\u00a0 The group watching the game in silence called a relatively greater number of penalties against the home team, and a relatively fewer number of penalties against the away team\u2014presumably because they were not influenced by the booing of the home crowd.\u00a0 Id.<\/em> at 163-64.\u00a0 See also<\/em> The 12th man: Why is Brazil expected to have an advantage when they play at home during the FIFA World Cup?<\/em>, The Economist, June 13, 2014.<\/p>\n What\u2019s more, studies have demonstrated greater referee bias when the game is close.\u00a0 And they have identified statistically meaningful advantages across a wide range of sports.\u00a0 In baseball, home teams strike out less\u2014and walk more\u2014than away teams.\u00a0 In football, away teams are penalized more than home teams\u2014particularly when the penalty results in a first down for the offense.\u00a0 The authors also found similar effects in basketball, soccer, and hockey.\u00a0 Scorecasting, ante<\/em> at 136-67.\u00a0 And they concluded that \u201creferee bias from social influence not only is present but is the leading cause of the home field advantage<\/em>.\u201d\u00a0 Id.<\/em> at 165.<\/p>\n Interestingly, the COVID-19 pandemic has given us a chance to test this hypothesis in the real world.\u00a0 Due to pandemic lockdowns, we now have experience running professional soccer games without crowd noise.\u00a0 And it turns out that the authors of Scorecasting<\/em> are right:\u00a0 \u201cWithout crowds, referees penalise home teams as much as away teams.\u201d\u00a0 Empty stadiums have shrunk football teams\u2019 home advantage<\/em>, The Economist, July 25, 2020.<\/p>\n So if we take seriously the Chief Justice\u2019s metaphor that we should view judges like we do umpires\u2014and it is a wonderful metaphor\u2014we also need to be aware, and wary, of what that metaphor foretells.<\/p>\n Americans are passionate about our sports teams.\u00a0 We\u2019re also passionate about our politics.\u00a0 In sports and politics alike, we need judges who have not only the intellect but also the fortitude to be impartial\u2014no matter how angry the crowd.\u00a0 We need judges who are not afraid of being booed.<\/p>\n * * *<\/p>\n Winston Churchill once said that \u201ccourage is rightly esteemed the first of human qualities, because . . . it is the quality which guarantees all others.\u201d Winston Churchill, Great Contemporaries 211 (James W. Muller ed., 2012) (1937).\u00a0 No one in high office today embodies the fortitude of the former Prime Minister better than Justice Thomas.<\/p>\n The British persevered through the early days of World War II inspired by Churchill\u2019s fighting spirit, immortalized by the enduring maxim:\u00a0 Keep Calm and Carry On.\u00a0 Channeling that same spirit today, Justice Thomas calls upon all of us to push forward, no matter how fierce the headwinds, with his simple exhortation:\u00a0 Be Not Afraid.<\/p>\n","protected":false},"excerpt":{"rendered":" [button link=”https:\/\/journals.law.harvard.edu\/jlpp\/wp-content\/uploads\/sites\/90\/2022\/01\/Fall-2021-No.-4-James-C.-Ho-22Be-Not-Afraid22.pdf” color=”red”] Download PDF[\/button] \u201cBe Not Afraid\u201d by James C. Ho In his three decades of service as a member of the Supreme Court of the United States, Justice Clarence Thomas has made countless contributions to the development of American law.\u00a0 But his greatest influence on our nation transcends any one particular area of jurisprudence.\u00a0 Perhaps the best way to capture Justice Thomas\u2019s most important impact on the judiciary\u2014and to celebrate his thirty-year […]<\/p>\n","protected":false},"author":140,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_post_was_ever_published":false},"categories":[72],"tags":[13,129,138,83,108],"class_list":["post-2236","post","type-post","status-publish","format-standard","hentry","category-per-curiam","tag-constitutional-law","tag-jurisprudence","tag-justice-clarence-thomas","tag-obiter-dicta","tag-originalism"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/peZSiL-A4","_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/posts\/2236","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/users\/140"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/comments?post=2236"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/posts\/2236\/revisions"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/media?parent=2236"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/categories?post=2236"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/tags?post=2236"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}