Madeline
Rookie
- Banned
- #1
WASHINGTON The anniversary will probably be observed in silence.
A week from Tuesday [on February 22, 2011], when the Supreme Court returns from its midwinter break and hears arguments in two criminal cases, it will have been five years since Justice Clarence Thomas has spoken during a court argument.
If he is true to form, Justice Thomas will spend the arguments as he always does: leaning back in his chair, staring at the ceiling, rubbing his eyes, whispering to Justice Stephen G. Breyer, consulting papers and looking a little irritated and a little bored. He will ask no questions.
In the past 40 years, no other justice has gone an entire term, much less five, without speaking at least once during arguments, according to Timothy R. Johnson, a professor of political science at the University of Minnesota. Justice Thomass epic silence on the bench is just one part of his enigmatic and contradictory persona. He is guarded in public but gregarious in private. He avoids elite universities but speaks frequently to students at regional and religious schools. In those settings, he rarely dwells on legal topics but is happy to discuss a favorite movie, like Saving Private Ryan.
Does Clarence Thomas's Silence Matter? - Room for Debate - NYTimes.com
Can a justice effectively perform his duties without participating in oral argument? Does questioning the lawyers in court make much difference, or is it mostly a ritual, with the justices' thinking pretty much set beforehand?
Five years having passed since Justice Thomas last asked a question at oral argument, we can turn our attention to a more significant anniversary that may arrive this summer. Barring any surprises, this June will mark the end of Justice Thomass 20th term on the Supreme Court without writing a truly significant majority opinion. That second milestone goes a long way toward explaining, and justifying, the first.
There is little evidence that Justice Thomas is open to persuasion or wants to persuade others.
Oral argument is not a useless exercise. It is an occasion for the advocates to frame the stakes of their arguments in terms too easily obscured by the dense briefing they supply to the court in advance. It allows the justices to obtain direct answers from lawyers on questions the lawyers evaded, whether artfully or inadvertently, in their papers. It also lets the justices preview their reasoning to their colleagues, with whom they might not have discussed the case in advance. That preview then enables both the lawyers and the other justices either to support or to interrogate an argument that might not have surfaced previously.
Alas, some of these uses for oral argument are in tension with each other. Anyone who has observed a recent Supreme Court argument will note that even experienced advocates can at times have difficulty completing a sentence, much less clarifying dozens of pages of briefing, without constant, often unrelated, sometimes simultaneous questioning from the bench. Justice Thomas is right that adding one more voice to the noise would not help matters.
More generally, though, many of the reasons for oral argument assume that the justices are either keen to persuade others of their views or are open to persuasion themselves. There is little evidence that Justice Thomas fits this description. He is a judicial iconoclast, opposed to following constitutional precedents with which he disagrees and unwilling to moderate his positions to achieve consensus. He is the courts most frequent lone dissenter, and to assign an important majority opinion to him is to risk losing your majority because of his uncompromising language.
It is difficult for a silent justice to win over colleagues, but he may not care to.
The Lone Dissenter - Room for Debate - NYTimes.com
Is Clarence Thomas' silence adding or detracting value to the SCOTUS?
Your thoughts?