Supreme Court Report
Experts sound off once again on Justice Thomas’ silence
Posted May 1, 2014 3:50 AM CDT
By Mark Walsh
On opinion days at the U.S. Supreme Court, first-time visitors in the courtroom usually perk up when they learn that Justice Clarence Thomas is about to deliver the opinion in a given case.
The justice they've heard so much about, but one they vaguely know, hasn't asked a question from the bench in a long time—it was eight years in February—and he is about to speak.
Justice Thomas' voice will fill the courtroom a fair amount in May and June as he announces his share of majority opinions, which he delivers in his deep baritone, sometimes at considerable length in even the most technical of cases.
But his refusal to question the lawyers during oral argument since a 2006 criminal case continues to be a subject of fascination and dismay. Last term, there was his much-discussed quip about Ivy League law schools during an argument about representation for the indigent, but observers did not count that as a question.
Robert Barnes, the Supreme Court correspondent for the Washington Post, wrote last year that when he takes audience questions in public talks about the court, someone invariably asks about Justice Thomas' silence during oral arguments.
"If polls show the American public has a somewhat gauzy understanding of the work of the high court and the justices who serve on it, it seems that one fact has cut through the fog," Barnes wrote.
TAKEN TO TASK
In February, the debate—if that's what it is—over Thomas' bench silence reached a new level when Jeffrey Toobin, The New Yorker's legal affairs writer, wrote a Web posting highly critical of Justice Thomas for "not paying attention" at oral arguments.
"By refusing to acknowledge the advocates or his fellow justices, Thomas treats them all with dis-respect," Toobin wrote, adding that the justice's behavior was "demeaning the court."
Toobin also took Justice Thomas to task for his posture and demeanor in court. "These days, Thomas only reclines; his leather chair is pitched so that he can stare at the ceiling, which he does at length."
The posting sparked an intense online reaction.
Garrett Epps, who teaches law at the University of Baltimore and writes about the court for The Atlantic, noted in a February online article that Thomas often consults briefs and law books during arguments, and exchanges whispers with the colleague on his left, Justice Stephen G. Breyer.
"I usually think that [Thomas] is at home" with his style on the bench, added Epps, who attends oral arguments far more frequently than the New York City-based Toobin. Still, Epps wrote that Justice Thomas' silence "is a lost opportunity for all of us."
Scott Lemieux, an assistant professor of political science at the College of Saint Rose in Albany, N.Y., wrote on the website of the liberal journal The American Prospect that he agreed there was something "petulant and spiteful about Thomas' refusal to ever ask a question." But the justice's silence has too often been used by his critics to paint a caricature of Thomas as unqualified, Lemieux wrote.
Ilya Somin, a law professor at George Mason University in Fairfax, Va., notes in an interview that the justice has explained his silence many times.
"It's understandable that it sticks out he's the one justice who never asks a question, but it's not a mystery," says Somin, who happened to observe Thomas shortly after the Toobin piece and wrote about it on the Volokh Conspiracy website. "It's pretty obvious he is engaged. It's also obvious he's engaged from the opinions he writes."
Although Justice Thomas has offered sometimes shifting rationales for his silence on the bench, his most consistent answer has been that he believes the court should listen to what the advocates have to say rather than constantly pepper them with questions.
"I think it's unnecessary," in deciding cases, "to ask that many questions," Thomas told Harvard law dean Martha Minow during a talk at the school last year. "I don't think it's helpful. I think we should listen to lawyers who are arguing their case."
John C. Eastman, a law professor at Chapman University in Orange, Calif., and a law clerk for the justice during the 1996-97 term, says his circle of Thomas clerk alumni find the focus on his bench silence silly.
"There's a lingering tinge of racism to these charges," says Eastman, who describes a vigorous preparation ritual for oral arguments between Justice Thomas and his clerks. Toobin says he has praised Thomas' jurisprudence (including a 2011 piece that called him "an intellectual leader on the court"). But he says he stands by his criticism of the justice's silence on the bench as "a disgrace."
"Describing criticism of Thomas as 'racism' is merely an attempt to silence that criticism, rather than respond to it," Toobin says.
Like many other supporters, Eastman believes attention should be focused on Justice Thomas' opinions.
"He's probably the most thoughtful and consistent jurist on the court," Eastman asserts.
Of course, a justice's former clerk is no doubt at least somewhat biased. But Eastman is hardly alone in his assessment of the consistency of Justice Thomas' jurisprudence.
In a new book, Ralph A. Rossum, a professor of American constitutionalism at Claremont McKenna College in California, argues that Thomas has been an even more consistent "originalist"—one who looks to the original meaning of the U.S. Constitution—than his frequent ally, Justice Antonin Scalia.
"After a long and bruising confirmation battle, Thomas arrived at the court as damaged goods," Rossum writes in Understanding Clarence Thomas: The Jurisprudence of Constitutional Restoration. "But during his second decade on the court and beyond, things changed dramatically."
Rossum wrote a similar book about Justice Scalia's jurisprudence in 2006.
"I admire Scalia enormously, and his opinions are written with such panache," Rossum says in an interview. "But at the end of the day I am convinced that Thomas is much deeper and much more serious than Scalia. I did not begin the project with that idea."
In the new book, the professor contrasts the approaches of the court's top two originalists. Justice Scalia, he writes, expounds an "original public meaning" approach, or "the meaning of the particular constitutional text in question at the time of its adoption."
Justice Thomas is more willing to look at "original intent" in the records of the constitutional convention, or "original understanding" of the ratifying conventions of the states, which Scalia eschews as forms of legislative history.
"Thomas' originalism is wider and broader," says Rossum, noting that the justice is alone on the court in citing the Declaration of Independence as a source of legal principle.
"For Thomas, the higher-law principles of the Declaration not only offer insight into how to interpret the Constitution but also provide the best defense of limited government, of the separation of powers, and of the judicial restraint that flows from the commitment to limited government," Rossum writes in the book.
Rossum agrees with those observers who have concluded that Thomas, over more than his 23 years on the court, lacks many truly landmark majority opinions.
"The chief justice or the senior associate justice in the majority is not going to risk having Thomas lose a majority when he is going to unabashedly use originalist arguments," Rossum says in the interview. "I think Thomas gets more than his fair share of tax cases."
Rossum says that Thomas' most enduring contribution to the court's jurisprudence has come not from his majority opinions but from his 138 concurrences and 166 dissents (as of the book's deadline), especially in areas such as the commerce clause, federalism, criminal procedure, and race and equality.
Whether he speaks at oral arguments or not, Rossum concludes, Justice Thomas' voice "is moving the court in his direction."
This article originally appeared in the May 2014 issue of the ABA Journal with this headline: "The Quiet Man: Once again, experts sound off on Justice Thomas' silence."