This week marks the fourth anniversary of Justice Clarence Thomas’ silence during Supreme Court oral arguments. The last time he questioned an attorney during oral arguments was in Holmes v. South Carolina, 547 U.S. 319 (2006), on February 22, 2006. Thomas had a solid reputation for sparse participation prior to the Holmes argument, and the four silent years since then have only served to solidify it. Observers, close and casual, are mixed on the significance of that silence, however.
Most people I encounter in casual conversation are immediately disparaging when it comes to Thomas, and particularly so regarding his silence. Some consider him a waste of space on the bench, and others suggest it is evidence that he is unqualified to serve on the Court, a charge that sometimes carries implications about his intelligence. Still others believe he simply is close-minded.
Thomas has offered a number of explanations for his disposition in interviews, speeches, and his memoir, My Grandfather’s Son. It’s not due to shyness– those who’ve met him report an outgoing character with a delightful sense of humor— but he has cited the shy demeanor he developed as a child who grew up speaking an English dialect, Gullah, as instilling a propensity for quietness. He also has criticized his colleagues for overplaying the judge’s part during oral arguments (“I have no idea what they are doing”) and, as a consequence, does not want to contribute to the cacophony he hears coming from the bench. A third common explanation references the often-acknowledged reality that appellate judges have read the parties’ briefs prior to oral argument and likely already made up their minds. The written briefs, Thomas has said, are “far more important” than oral arguments, which, nine times out of ten, do not change his position.
For anyone not predisposed to dislike Thomas for any number of irrational reasons, any one of these responses would seem to be an objectively acceptable explanation. Neither his responses nor his consistent pattern of practice has dissuaded observers and critics from continuing to question his silence, however. Among the questioners is his colleague, Justice Antonin Scalia, who thinks Thomas should engage in oral argument for his (Thomas’) own benefit. Off the bench, others are recognizing Thomas’ importance and basing their objection to his silence in that realization. Singling him out “because his silence is so unrelenting, his opinions are so far-reaching, and his position on the nation’s highest court is so influential,” one academic writes:
Rarely has a Justice said so little but had so much to say….Justice Thomas’ profound silence during oral argument undermines the Court’s deliberative process-and weakens the legitimacy of the far-reaching conclusions…that Justice Thomas reaches without the benefit of briefing or oral argument. By removing himself from oral argument, Justice Thomas’ opinions do not benefit from the full adjudicative process designed to test theories in open court….Justice Thomas should end his silence, both for his own benefit and for the Court’s.
David A. Karp, Why Justice Thomas Should Speak at Oral Argument, 61 Fla. L. Rev. 611, 613-14 (2009). Karp and Scalia agree that Thomas should participate for his own sake. If, contrary to his assertions about his own behavior, Thomas really is just sticking his head in the sand, the self-help rationale might make sense. There is no suggestion, though, that he does not participate in the justices’ conferences or consult with them outside of the courtroom, and it is said that he is respected by his colleagues as a skilled opinion writer. Thomas certainly both is aware of his silence and knows how to ask a question if he has one; he’s done it before, if infrequently. It is not implausible to think that a justice could make up his mind after reviewing a case’s written record, which probably includes three briefs (petitioner’s brief, respondent’s brief, and petitioner’s reply brief), two lower court opinions (trial court and intermediate appellate court), a trial record, and other filings like motions and amicus briefs. If nothing else, the suggestion that “Thomas should end his silence…for his own benefit” comes off as a bit of a slight. Id. at 614.
The other reason Karp says Thomas needs to ask questions is for the benefit of others. Karp’s concern seems to stem from the “radical” nature of Thomas’ views, id. at 613 (quoting Erwin Chemerinsky, Foreword: Justice Thomas and the First Amendment, First Amendment Center (Oct. 8, 2007)), and Karp’s belief that advocates would better be able to inform those views if Thomas asked questions to guide their responses. It is not obvious that this is a statement of the proper attorney-judge dynamic, but even if it is, it may not be sufficient to require Thomas’ participation. After more than eighteen years on the Supreme Court, his judicial philosophy, unique among the sitting justices, is well known and, by its nature, not prone to radical shift. Just as justices write their opinions in inclusive ways to try to secure the votes of colleagues, so too should advocates draft their briefs to speak to the peculiar concerns of the justices who will be deciding the case. In short, if a lawyer wants Thomas’ vote, he or she has a pretty good idea how to get it.
Thomas has his defenders, including Supreme Court litigator Steffen Johnson, who says Thomas’ cold bench demeanor “reflects humility on his part,” and, contrary to Karp, the lawyer’s role at argument is to support and assist the justices.
The aim of this post is not to mount a full defense of Thomas’ silence or his judicial philosophy. It merely is to push for a fair and reasonable look at one aspect of his public temperament. I favor richness in public discourse, and Thomas’ voice at oral argument would contribute to that richness. If nothing else, it might force his critics to read his writing and thereby engage with him on a deeper level. While it’s not possible to know for sure why he usually keeps quiet during oral arguments, I can appreciate Thomas’ apparent recognition of the value of listening and the effect it might have on the other justices if they listened to his silence.