ABA Journal


US Supreme Court

Confusion over rare remark by Justice Thomas due to transcript error

Jan 23, 2013, 11:25 pm CST



By KIM PORTER on 2013 01 24, 2:28 am CST

Don't be too hard on him, Kim. He just subscribes to the well known Maurice Switzer saying that "It is better to be silent and thought a fool, than to speak up and remove all doubt."

[No need to send in the Samuel Johnson, Abraham Lincoln, Book of Proverbs corrections. See]

By Pushkin on 2013 01 24, 5:07 am CST

Well, when he does say anthing, they completely cock it up, so who can blame him for not creating the opportunity more often?

By B. McLeod on 2013 01 24, 1:23 pm CST

I do not fault Justice Thomas for his silence .

In February 1968 the AP accused UNARMED students of <i><b>“exchanging”</b></i> gunfire with the police .

As I understand , to this day , the AP has refused , neglected or failed to correct its error .

By Docile Jim Brady - Columbus OH 43209 on 2013 01 24, 4:49 pm CST

I wonder what Kim's reaction is to the horrible reporting by the media. Her comments are, unfortunately, politically based. Perhaps Kim should think before uttering an opinion. Justice Thomas is judicial - Thank the Lord!

By blackjack on 2013 01 25, 9:53 am CST

I guess it's better to remain silent and appear foolish than to be a guest on the OPRAH show and remove any scintilla of a doubt.

By DeSotomyer on 2013 01 25, 10:11 am CST

Somehow, I expect more from a Supreme Court Justice than I do of "the media" With Justice Thomas, one rarely gets it.

By donniem23 on 2013 01 25, 11:29 am CST

If donniem23 has more respect for the media than for Justice Thomas, that is a reflection of political bias. Further deponent sayeth not.

By blackjack on 2013 01 25, 1:16 pm CST

The Justices hear cases in interpreting the Constitution, in contrast to the hearings held by the legistative branch, where the purpose is for the legislator to be heard. Justice Thomas is there to listen to the arguments of counsel. Remarks and questions from the bench are often for the purpose of exerting an influence on the other Justices. He doesn't play that game.

By Tim on 2013 01 25, 1:25 pm CST

Am I the only one who thinks that the comment itself is newsworthy? A Supreme Court Justice pointing out that Yale and Harvard grads didn't "provide good counsel"- pity it took a fellow Ivy grad so long to recognize that these credentials are overrated.

By NYS Courts ex wife on 2013 01 25, 1:45 pm CST

I find it incomprehensible that a judge can never have a question arising from counsel's argument. What is holding him back from asking the question that at least once in a while surely has to enter his mind? Do all questions he has always get addressed/answered by someone else? If so, what does that say for his intellect? Surely a good judge should have an inquiring mind.

By Robert Bosch on 2013 01 25, 1:48 pm CST

The initial comments to this article are impressively stupid.

Please read a few of Thomas' opinions before opining on the man's intellect. His judicial philosophy , while anathema to many, is logically sound (IE never self-contradictory) which is more than can be said of many Supreme Court Justices.

By Catholic Mafia on 2013 01 25, 2:06 pm CST

Didn't William O. Douglas set some sort of record for never asking a question in all his years on the bench?

By Kelly Haggar on 2013 01 25, 2:08 pm CST

Kim #1: What do you mean "what an extreme waste"? Do you think being a blowhard and basking in attention is what we have Supreme Court Justices for? I prefer to think that writing well-reasoned opinions -- and Thomas's are consistently that (notwithstanding the herd mentality that it is cool to disparage him) -- is a better attribute.

By JFK on 2013 01 25, 2:14 pm CST

Wow, ad hominen comments on the ABA site rudely insulting a conservative without offering any substantive basis. Color me shocked.

By Just Some Bloke on 2013 01 25, 2:26 pm CST

@1: He doesn't need to say anything. Most of the arguing is done in briefs, whether by the parties or the amici. Oral arguments are a show in my opinion.

By Oliver Tabuger on 2013 01 25, 2:56 pm CST

Esse quam videri

By Patrick in Texas on 2013 01 25, 3:11 pm CST

when i have seen and heard justice thomas on radio and tv, he has spoken with intelligence and clarity

the ABA has long been knee- jerk liberal as reflected by selection of articles and by policy

although neither the ABA nor the authors of any of the comments or any of us are usually aware of our bigotry, it does seem rather easy to spot the liberal hatred of, and attempt to, destroy prominent black conservatives

liberals and conservatives alike need to avoid the temptation to vilify those with whom we disagee; and we need to avoid cloaking this temptation to vilify under a smokescreen of hypocrisy and self-righteousness

joe bailey hyden

By joe bailey hyden on 2013 01 25, 3:20 pm CST

Perhaps the other justices should try not asking a single questions during a trial. Putting politics aside, this just seems lazy and/or lacking intellectual curiosity.

By Options on 2013 01 25, 3:50 pm CST

It is possible to disagree with any justice ; color does not enter the equation .

By Docile Jim Brady - Columbus OH 43209 on 2013 01 25, 3:55 pm CST

Blackjack..please reframe from paper politics... your comment shows your representation for factual based comments are purely political so I suggest you base your comments on fact rather than grandstanding. I can only speak for myself, therefore I will say this-- our judicial governing system works like anything else-- by the facts and subjective opinion..When we discard either of these we no longer have democracy.

By Kim Porter on 2013 01 25, 4:40 pm CST

I love the sounds of Conservatives whining in the morning. It sounds like....victory.

By Vic Sage on 2013 01 25, 4:42 pm CST

I thought the advocate was supposed to talk and the judge was supposed to listen. I know I certainly appreciate it when the judge bothers to listen to me!

By JBP on 2013 01 25, 4:52 pm CST

Justice Thomas' silence used to bother me more. Now I just accept the fact that the votes are already set prior to oral argument, so it's mostly just a formality to be able to fill in the bits of the opinion reciting : "At oral argument, Petitioner said something I am going to jump on to justify this results-oriented jurisprudence masquerading as legal reasoning."

By Voice of Reason on 2013 01 25, 5:00 pm CST

corrected or not he said nothing.

By Augustin Ayala on 2013 01 25, 5:08 pm CST

In summation:
pari passu ab uno disce omnes...

By Kim Porter on 2013 01 25, 5:16 pm CST

Reuters is in error when it claims that everyone on the Supreme Court is a graduate of Harvard or Yale Law Schools. Justice Ruth Bader Ginsburg began her legal education at Harvard but she finished it and graduated from Columbia School of Law, where she later became a professor.

Lynn Hecht Schafran
Columbia Law '74

By Lynn Hecht Schafran on 2013 01 25, 6:18 pm CST

I shouldn't have questioned his intellect. I just don't know enough about him or his intellect, for that matter. I just can't imagine a judge never asking a question, but still doing his job well. By the way, I'm a conservative, somewhat to the right of Atilla the Hun. As some have said, politics and race should not be entering the debate. Too often we look at politics/color/self-interest first before forming an opinion on any issue. I see it all the time and at some point we have to be intellectually honest enough to stop doing it.

By Robert Bosch on 2013 01 25, 6:19 pm CST

"BENCH WARMERS" Seven Years of Warming the Bench, Listning, doodling, daydreaming, analyzing, nodding, Interpreting, and just plain ol warming the bench.

By Angelo Dickens JD on 2013 01 25, 7:35 pm CST

Kim Porter - comment #21: I think you mean "refrain", not "reframe".

By Dennis on 2013 01 25, 11:12 pm CST

It's possible that Thomas regards it as the responsibility of the lawyers to present their cases, and that they are not witnesses to be cross-examined from the bench. Ideally (meaning: if the lawyers have done their jobs, and the bench does their impartially), there is no need for questions.

By Robert on 2013 01 26, 6:47 pm CST

While I do agree with a number of the foregoing comments that Justice Thomas (and let's be realistic, his law clerks) has penned a number of well-reasoned opinions (even if ideologically divisive), one number still looms large: 7. Nearly SEVEN YEARS have elapsed since J. Thomas last said anything meaningful at an oral argument. Since SCOTUS hears upwards of 100 cases on the merits per year, that means he has sat silent for more than 700 hours of argument on some of our Nation's most important legal issues (from criminal justice to affirmative action to campaign finance) without ever pressing counsel to clarify a position, explain an inconsistency, address a potentially unforeseen consequence, etc.

I understand that Justice Thomas was reticent as a child and perhaps he has always subscribed to the "Better to be silent and thought a fool..." proverb. I also am hesitant to question his overall intellectual curiosity, because even if all of the political stars lined up for his 1991 appointment when there may have been much stronger candidates, he didn't get as far as he has without showing himself to be modestly intellectually curious.

Still, his muteness is historically remarkable and raises questions as to how much he ACTUALLY LIKES the work of a High Court justice. Imagine if all nine of our Supreme Court friends took the Thomas approach to oral argument... Bueller? Bueller?

I will say that in spite of the fact that I personally have trouble with a number of opinions Justice Thomas has authored or joined (e.g. Citizens United v. FEC, Roper v. Simmons) as well as the premeditated "race card" he played in his monologue at his confirmation hearings, my respect for him did increase when I watched the "60 Minutes" interview with Steve Kroft in 2007. I recommend watching it (YouTube has the whole interview, I believe). He pulls no punches about his Ivy League education, that's for sure.

By L-Train on 2013 01 26, 11:11 pm CST

Oral arguments are a show. Usually, the issues have been fully briefed by all parties and amici before oral arguments.

By Oliver Tabuger on 2013 01 26, 11:19 pm CST

I feel compassion for him. He apparently has a fear of public speaking, at least in court. He has a beautiful voice during his one on one interviews! My second legal writing teacher, (after my appearance in a moot court part of Legal Writing II), told me not to worry, that at least I spoke. Apparently/possibly she had been too nervous to speak much or to fully answer the questions of the panel of judges that she once had to appear before.

As an attorney, my favorite two "legal" experiences were 1) writing my most recent Opening Brief for the Ninth Circuit; and 2) playing the role of SCOTUS justice for the ABA Annual Moot Court Tournament, when the ABA's Moot Semi-Finals were in Seattle about a year ago. I absolutely loved the first round. The second round was not as fun, must less fact oriented. "Counsel" emphasized the law, and I'm a "fact" kind of guy.

By Tom Youngjohn on 2013 01 27, 4:09 am CST

@34: Spoken like a true trial lawyer. ;-)

By Oliver Tabuger on 2013 01 27, 6:48 am CST

Mr. Tabuger is generally correct, but not always. I've won and lost motions at oral argument. Not often, the judge usually decides on the papers but if it's close oral argument can carry the day. Usually it's a matter of emphasizing a particular point in the brief the judge may have overlooked or expanding on facts stated in the brief.

By George Sly on 2013 01 27, 3:31 pm CST

@ Docile Jim Brady, who wrote "AP accused UNARMED students of “exchanging” gunfire with the police..."

No it did not. It reported, obviously incorrectly, assuming your statement is accurate. AP and other wire service reports are not like legal briefs or law review essays done with lots of time. Often they are dictated -- try dictating off the top of your head when there is gunfire -- or the leg man (or leg person) calls in notes that a writer turns into a report. Wire service reports in that day got updated continually. The mis-report you assert probably had most people chuckling, assuming the bollixed language made it into print anywhere.

By David Cay Johnston on 2013 01 28, 8:22 pm CST

Methinks Justice Thomas does not speak often because whenever he tries to speak, he comes across a tad bitter, having been tarred for life as a beneficiary of the affirmative action which he so loathes.

By ReaganNYC on 2013 01 28, 9:41 pm CST

Who was more confused by the comment, the public or Justice Thomas?

By NoleLaw on 2013 01 29, 9:03 pm CST

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