U.S. Supreme Court

Is Justice Thomas not paying attention? Commentator calls silence 'downright embarrassing'


It has now been eight years since Justice Clarence Thomas asked a question during oral arguments, and that’s eight years too many, according to a magazine columnist.

In a New Yorker column, Supreme Court commentator Jeffrey Toobin writes that Thomas “is simply not doing his job.”

“His behavior on the bench has gone from curious to bizarre to downright embarrassing,” Toobin writes, “for himself and for the institution he represents.”

Toobin observed Thomas during oral arguments in January on the power of the president to make recess appointments. According to Toobin, Thomas’ behavior has changed over the years. In the early days, Thomas would “rock forward” and whisper comments to fellow justices sitting next to him.

“These days,” Toobin writes, “Thomas only reclines; his leather chair is pitched so that he can stare at the ceiling, which he does at length. He strokes his chin. His eyelids look heavy. Every schoolteacher knows this look. It’s called ‘not paying attention.’ ”

The Los Angeles Times responded to Toobin’s article with an op-ed pronouncing Thomas’ conduct “strange” but not a dereliction of duty. If anyone wants to learn what Thomas is thinking, the op-ed says, he or she can read Thomas’ opinions.

“As Toobin acknowledges,” the op-ed says, “Thomas is a distinctive and occasionally influential thinker on the court, the ‘intellectual godfather’ of important decisions even when he doesn’t write the majority opinion. So he seems to be doing the most important part of his job.”

Hat tip to How Appealing and @rickhasen.

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