Justice Thomas Hasn't Uttered A Word From The Bench In 10 Years

Does it really matter?

02/02/2016 10:10 am ET
ASSOCIATED PRESS
On Feb. 22, Justice Clarence Thomas will commemorate a decade of ... not asking a single question at a Supreme Court hearing.

Justice Clarence Thomas will soon celebrate 10 years of not speaking during oral arguments at the Supreme Court, The New York Times reported on Monday. 

That is, he hasn't asked a single question to lawyers appearing before the court to try to make their case. For a decade.

We've seen stories like this before. The Times itself commemorated the five-year mark in 2010 -- complete with a graphic. If that wasn't enough, it commissioned four legal experts to debate the issue. At least no one said Thomas was violating the "good behavior" clause of Article III of the Constitution.

The newest article explores the rationales Thomas has offered for his silence, which seem to shift with time: that asking too many questions is "unnecessary" and "not helpful" for deciding cases, since the lawyers do "most of the work" in the legal briefs they file with the court.

But those filings arrive at the Supreme Court several weeks before it holds oral arguments. Does that mean that Thomas' mind is already made up about the outcome of the case by the time he hears from the lawyers? Isn't there any room for him to be convinced otherwise? Or couldn't one of his colleagues sway him with his or her own counterarguments?

Thomas once told Bryan Garner, a legal historian and oral advocacy expert, that oral arguments "almost never" change his mind.

"And I'm almost certain that my colleagues' minds don't change in maybe max 10 percent, 5 percent of the cases," he said. "Or it does change in 5 or 10 percent of the cases, maybe, and I'm being generous there."

Thomas has also complained that the Supreme Court is over-the-top "intense" in not letting advocates getting a word in edgeways and that he would allow their day in court -- for many of them the biggest day of their lives -- to be a meaningful one.

"It bothers me if someone has to leave this building thinking, 'I couldn't get my point over,' or 'I didn't get to say my piece,'" he said in the same interview with Garner. He added that the lawyers "should be treated ... with respect and the dignity that we expect" from the court.

That probably overstates the case because lawyers are trained to take a beating from a hot bench of judges who were once attorneys. The Supreme Court even makes available a guide for oral advocates that prepares them for their big-day of grilling.

Whatever the justifications, Thomas' no-questions policy is unacceptable for some. Writing in The New Yorker in 2014, Supreme Court observer Jeffrey Toobin dedicated an entire column to Thomas' then-eight years of "disgraceful silence." He stopped short of demanding he resign. 

Thomas isn't shy to stake out extreme and even loner positions on contentious issues, like affirmative action and religion.

"Imagine, for a moment, if all nine justices behaved as Thomas does on the bench," he proclaimed. "The public would rightly, and immediately, lose all faith in the Supreme Court. Instead, the public has lost, and should lose, any confidence it might have in Clarence Thomas."

Responding to that criticism, University of Baltimore professor Garrett Epps, who attends oral arguments with regularity, took a more gracious view of Thomas' way with words and contributions to the court, but still concluded his wordlessness was a net loss for the public.

"We can disagree about whether Thomas' performance makes him a good Justice or a bad one. But as his employers, we all can expect from him the best that he can give," Epps wrote in The Atlantic.

"It seems both infuriating and sad that he would choose to play it less fully than he might."  

But is Thomas really not pulling his weight? After all, the justice does show up for oral arguments and meets with other justices privately to deliberate and cast votes on cases. Presumably, the very fact of his participation there means he is taking an active role in the court's work.

And unlike Toobin, who compared Thomas to a schoolchild who is "not paying attention," frequent attendees at the court would agree that the justice is very much engaged at each hearing -- consulting books, looking at his notes, and interacting with Justice Stephen Breyer and Justice Antonin Scalia, with whom he sits side by side.

Also, it's not like the public never gets to hear from him from the bench. For one, every time he has the court's lead opinion in a case -- about eight times a year, as the Times noted -- he gets to announce it live.

For example, you can hear his booming baritone in Connick v. Thompson, an awful 5-to-4 decision in a case where the court reversed a $14 million jury award for a man wrongfully convicted and sentenced to death. (The ruling was so bad, Justice Ruth Bader Ginsburg felt compelled to announce her dissenting opinion from the bench, which only happens rarely.)

Which perhaps points to the real debate the public and the press should be having about Thomas: His overall views on constitutional law, the rights of minorities and the accused, healthcare, the environment -- the things people really care about.

For all his reticence in the courtroom, Thomas isn't shy to stake out extreme and even loner positions on contentious issues, like affirmative action -- which he has compared to slavery and segregation -- and religion -- which he thinks states should be free to impose because the First Amendment allows it.

Maybe that, and not Thomas' silence from the bench, is truly worth speaking up about.

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