Bankruptcy

Justice Thomas?s Silence

By mcbride

It has been five years since Justice Clarence Thomas has asked a question of the attorneys arguing before the Supreme Court.  This has raised some interesting commentary.  Here are quotes from one article on Justice Thomas’s silence:

“So what if he doesn’t talk? His decades’ worth of opinions speak for themselves. Earl Ofari Hutchinson makes the same point, albeit less admiringly, writing: ‘Thomas is not the legal boob that his arch critics lambaste him as. That’s their stock explanation for why he remains stone silent on the bench. Thomas has an unabashed and glaringly transparent agenda; a legal and political agenda that has been unshakable since his narrow, controversial and much reviled confirmation in 1991.’ Hutchinson adds: ‘This doesn’t require any prolonged give and take on his part with the legion of attorneys that parade before him during oral arguments. His opinions could be mailed in they are so reflexive and predictable.’

Much of the thinking about the significance of Thomas’ silence at arguments turns on one’s subjective beliefs about the purpose of oral argument: If you believe it shapes judicial opinions, or telegraphs important areas of concern to counsel, or allows the justices a forum in which to bridge the differences among themselves, then Thomas’ decision not to participate feels like an insult. If you believe it’s the sole opportunity for the court to interact formally before the American public, it can seem like a deliberate snub.

But if, like Thomas, you don’t think argument changes anything, or that you’re unlikely to change your views of the case as a result of it, years of radio silence is perfectly defensible. No justice owes the public a show of public agonizing (although if Thomas, as he claims, finds that some cases ‘will drive you to your knees’ it would be useful for the public to see him agonizing at least on occasion). No justice owes the lawyers before her any hints about her thinking, either. And while some justices may use the argument time to hone and refine their own arguments to appeal to their colleagues, that is not an obligation, so much as a choice. Thomas sees the application of justice as a solo sport?he always has?and it’s to his credit that he doesn’t pretend anything different.

Moreover, it’s clear that the circuslike atmosphere of oral argument has reached something of a crisis point this term, especially with the additions of Justices Elena Kagan and Sonia Sotomayor, both of whom appear to be somewhat more loquacious than the justices they replaced. Chief Justice John Roberts now spends more time than ever directing traffic at oral argument, grimly reminding his colleagues to patiently wait their turns. Thomas isn’t wrong to suggest that the last thing the bench needs is another chatterbox.”

Here is a link to this interesting article: http://www.slate.com/id/2285217/

Michael

Full post as published by Texas Lawyer Blog on February 16, 2011 (boomark / email).