Friday, May 08, 2020

It Turns Out Clarence Thomas is no Glossophobe; He's Just Polite

by Michael C. Dorf

By some measures, up to 75 percent of people suffer from glossophobia, the fear of public speaking. Yet many people who appear to be glossophobes actually might not be. I knew a college debater who, in ordinary conversation, was very quiet, leading those who didn't know her to conclude that she was shy, perhaps painfully so. However, during a debate, she spoke eloquently, confidently, and appropriately loudly. My working hypothesis was that she was not at all nervous about speaking in public; she was simply very polite and thus unwilling to break into an existing conversation.

It's probably not an accident that my debater acquaintance was a woman. A large body of social science research identifies and analyzes the causes of gender and racial gaps in participation in classroom discussions. It turns out that females and members of disadvantaged minority groups are not just more reluctant than white males to interrupt others in an ordinary conversation. They're also more reluctant to raise their hands and ask for the floor. Yet if given the floor they have at least as much of value to say as their more eager classmates.

What's true in elementary, secondary, and post-secondary education is also true in workplaces, including the Supreme Court. Sure, given small numbers, there are outliers. Justice Sotomayor is a Latina woman, but she is hardly reluctant to jump into an oral argument. Neither of the other women on the current Supreme Court is either.

However, Justice Clarence Thomas is famously quiet during oral arguments. Or at least he was until this week, when, in an accommodation to the telephonic oral argument, the rules changed. All of a sudden, Justice Thomas was asking as many questions as his colleagues. I want to suggest three lessons that we can draw from the experience.

First, Justice Thomas had interesting and important contributions to each of the four oral arguments. In the Little Sisters of the Poor case, he focused on standing for a nationwide injunction to a greater extent than his colleagues and suggested a potential non-delegation issue. In the robocaller case, he observed the strange interaction between standing and severability in a way that evoked his earlier critique of severability in a case a couple of years ago. I previously called that critique "problematic," but it's worth engaging. And in all four of the oral arguments, Justice Thomas seemed refreshingly less interested in scoring points against or through the advocates than in giving them a chance to explain their positions fully.

Second, the fact that Justice Thomas was a thoughtful participant in the oral arguments apparently surprised a great many observers. It shouldn't have surprised anyone who follows the work of the Court reasonably closely. Although I rarely agree with Justice Thomas when he disagrees with his more liberal colleagues, it is clear that he has a distinctive set of views. These include: less regard for precedent than any of his colleagues; greater likelihood to justify his positions by reference to originalism; a consistent view of federalism in which he, almost uniquely, disfavors statutory pre-emption while favoring relatively strong limits on the power of Congress; and views on race that are in important ways connected to strands of Black nationalism (as explored in Corey Robin's fascinating book, The Enigma of Clarence Thomas). To my mind, the too-common portrayal of Justice Thomas as the product of hypocritical affirmative action for an African American conservative is far too simplistic and at least sometimes tinged with a casual racism.

Third, it's notable that it took being called on for Justice Thomas to fully engage in oral argument. Cold-calling--the practice by which a teacher calls on students who have not volunteered--is sometimes portrayed as sadistic, and it certainly can be used that way. But it can also be used as a means of ensuring roughly equal participation. In educational settings, that's valuable to ensure that all students feel welcome and valued. At the Supreme Court, the issue is not so much the feelings of the individual Justices as it is the quality of the argument.

The take-turns method of oral argument used out of necessity this week was in some ways inferior to the usual in-person sessions. Most notably, the ability to ask just a couple of questions during one's turn precluded follow-up questions and left some questions unanswered. However, even then, the Justices seemed to rise to the occasion, with more junior Justices sometimes asking follow-ups to questions that were asked earlier by relatively senior colleagues. (The Justices went in order of seniority.) In that respect, the arguments reminded me of faculty workshops at which the moderator keeps a queue. Incomplete answers often elicit follow-up questions from later questioners. Meanwhile, the fact that Justices were not battling each other for airtime gave the arguments a somewhat less-frenzied character than usual. And the biggest benefit of all was that we got to hear the distinctive voice of Justice Thomas.

The Justices should consider retaining some elements of the take-turns approach to questioning when it is safe to resume in-person arguments. If they do not, I hope they will nonetheless find some way to encourage full participation by all members.