Clarence Thomas, the Quiet Supreme Court Justice

1. bean
   February 28th, 2008 at 11:23 pm

   Yeah, it's easy to hear a case when you make up your mind before you've heard either side of the argument.

2. Whiplash
   February 28th, 2008 at 11:53 pm

   With so called questions you have to deal with pesky things like answers and information. It is sad that he seems to take pride in this stance.

3. JD
   February 29th, 2008 at 12:13 am

   Which is exactly what should be done. The Justices do copious amounts of research before oral arguments are set. 99.99% of the time, thier minds have been made up. Much of the questioning at the Supreme Court is about persuasion — by the Justices, not of them. Supreme Court arguments can be kind of like jury trials in which the Justices with strong views act as the lawyers; the lawyers before the Court act as the witnesses; and the swing vote Justices play the role of the jury. Viewed from this perspective, oral argument can become sort of like a chaotic combined direct and cross examination, with much of the questioning designed to persuade the "jury" of the swing votes — formerly O'Connor, now Kennedy. If you have this understanding of oral argument, the meaning of Thomas's silence is pretty different than what the public might think from reading the news reports about it. Justice Thomas has strong views of his own, and yet he is not interested in "playing the game" at oral argument of trying to use questions to persuade swing votes. Maybe that's a good thing, and maybe it's a bad thing. But it's quite different from suggesting a lack of interest in the Court's work.

   Besides, should we allow the direction of laws of this country be persuaded by the silver-tongued attorneys, rather than the wisdom of the Court?

4. Dave
   February 29th, 2008 at 12:18 am

   Read the man's autobiography, My Grandfather's Son (ISBN 9780060565558), and it will give you a better insight into Justice Thomas.

   As for his lack of questions, it's not that unusual a thing. Most lawyers presenting a case before the Supreme Court try to anticipate any questions that come up and end up over-explain things. Add to that the reams of documentation that are presented with each case; Thomas does his homework before he ever hears the voice of the presenting lawyers and usually knows the case better than they do.

5. JD
   February 29th, 2008 at 12:25 am

   To double post, and address the first two commenters, all of the information should be contained in the briefs filed to the court. There shouldn't be any new information added at Oral Arguments. The facts do not change through the appeals. The questions asked aren't of information. They're to probe the viability of the arguments and prove for flaws and weaknesses in them. This, of course, presuposes that the Justices already know of the strong points and the flaws and weaknesses.

   Perhaps these stock stories for the press should mayabe..i don't know...educate on how Supreme Court cases actually work, and how, by the time the argument starts, each Justice has likely studied multiple briefs, done tons of research, had his/her clerks do tons of research, gone through bench memos, and (perhaps) gone 90% of the way toward making up his/her mind up about the case.

   I wonder how many people who read these articles are even aware of the existence of merits briefs.

   (personal thought: Thomas WILL speak up at the DC/Heller case.)

6. whodathunkit
   February 29th, 2008 at 12:43 am

   And that last question he asked? "Who put this pubic hair on my Coke can?"

7. Johnny Cat
   February 29th, 2008 at 1:05 am

   Clarence Thomas is a cool dude. I like him.

8. shecky
   February 29th, 2008 at 1:21 am

   Did anyone check to see if he's using some of these?
   http://www.museumofhoaxes.com/hoax/weblog/permalink/eyeball_stickers/

9. JD
   February 29th, 2008 at 1:26 am

   actually, if i remember correctly, the last question was Holmes v. South Carolina regarding the mischaracterization of the state's Supreme Court opinion. A probative question for a 'clearly' 'uninterested' Justice.

10. shecky
    February 29th, 2008 at 1:29 am

    personal thought: Thomas WILL speak up at the DC/Heller case.

    Wait a minute. Does that mean Thomas will be “playing the game” at oral argument? Didn't you just explain why that should NOT be done, and was his strength?

    Can Thomas do no wrong?

11. roger
    February 29th, 2008 at 1:34 am

    When my girlfriend argues at me I dont say anything either. Whats the point?

12. JD
    February 29th, 2008 at 6:32 am

    Shacky: asking a question is necessarily playing the game. One side, a question can go for persuading others the swing votes; Thomas doesn't do this. His question in Holmes, on the other hand, was to point out a glaring error in interpretation. He wasn't asking to persuade, he was asking to 'inform' counsel.

    And that's the distinction here: Thomas has an interesting way of addressing the docket, one that doesn't need oral arguments. He's one of the most studied persons on the Framer's of our Constitution, if not THE most studied person. I think, per my opinion that he'll speak up in Heller, that he will ask not to persuade, but to 'inform' counsel for DC that they have made a glaring error in interpreting the 2nd Amendment and the Framer's intent. I guess you could construe this as 'persuading' the swing-vote, but the label stems from his intent, not the outcome.

    I'm not giving Thomas a free pass...although I do think his stance gives some grounding to the Court. I would personally approach the docket in a different way. I'm just explaining that there's more to this than that silly article says and hopefully prevent the wrong conclusion, that Thomas isn't 'interested'. While I think Thomas was VERY right on some decisions (Kelo v. New Londong, dissenting that "something has gone terribly wrong here"....), he has been wrong on others (like Hamdi).

    Btw, if you think that Thomas is the only one who has made his mind up before oral arguments, you're terribly wrong.

13. Sid Morrison
    February 29th, 2008 at 8:23 am

    Good comments (and arguments), Mr. JD.

14. Jeremy
    February 29th, 2008 at 8:30 am

    I kind of like his style. In the end its not up to the judge to make sure that the lawyers present their best arguments, its his job to judge what the final result should be. When you see the law as something simplistic you damn him for his methodology, when you see it as very complex it almost seems the most logical way to judge.

15. anon
    February 29th, 2008 at 10:21 am

    An anecdote:

    My parents went to DC, and waited to see the SCOTUS in session. They'd been up for a while, and had to wait for a while, and my mother was nodding off in the viewing gallery.

    The guard, or baliff, or whatever nudged her and said "you can't sleep here".

    She pointed at Justice Thomas, and said "what about him?" He was asleep on the bench. (or, at least, his chin was down, and he hadn't moved for some time....they couldn't see his eyes)

    I think the anecdote probably illustrates more why he doesn't ask questions, than anything else.

16. j.e.k.
    March 1st, 2008 at 3:48 pm

    Justice Thomas doesn't need to ask questions, his handler Scalia tells him what he needs to know like a good Uncle Tom

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