I recently asked my Facebook network which Supreme Court justice, modern or historical, would they elect to partner with on a Constitutional Law final exam, assuming the justice had taken the class with them that semester. John Marshall, Oliver Wendell Holmes Jr., Robert Jackson, and William Brennan were predictable choices as powerful writers and influential molders of constitutional thought. Scalia, well-known for his bombastic style yet clear exposition of facts and law, was popular. Clarence Thomas received no votes. Perhaps it is to be expected that among the constellation of judicial stars, Thomas would pale in popularity–his legacy, after all, has yet to be defined. No doubt for others his judicial philosophy, hewing tightly to original intent and historical understanding, leaves progressive-minded comrades ill at ease. Yet if a motivating factor for unpopularity is Thomas’ silence at oral argument, I would ask my friends to reconsider.
Clarence Thomas joined the Supreme Court in October 1991. On February 22, 2006, Thomas posed a question during oral argument, and has stayed silent ever since. His silence has been the subject of much commentary and speculation, and perhaps inevitably, ridicule and accusations of un-intellectualism. This disparaging category of charges is unfair, and deserves some scrutiny.
In a piece on the fifth anniversary of Thomas’ silence, Adam Liptak of the New York Times quoted a law review article which opined: “If Justice Thomas holds a strong view of the law in a case, he should offer it . . . It is not enough that Justice Thomas merely attend oral argument if he does not participate in argument meaningfully.” One Huffington Post author, writing on important questions Thomas had asked, noted, “. . . Thomas’ silence has also left many casual observers — that is, ordinary American citizens — with the impression that the man either does not care about the cases or cannot intellectually compete with his colleagues.”
Dahlia Lithwick from Slate has defended Thomas’ right to remain silent: “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 . . . 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.” Even this interpretation is somewhat unfair. Thomas does not believe that oral argument is worthless, merely that oral argument is a time for advocates to make their case, and not justices to lobby their colleagues. In a 2009 C-SPAN interview, Thomas revealed:
I view oral argument a little differently. I think it’s an opportunity for the advocates, the lawyers, to fill in the blanks. To make their case, to point out things that were not covered in the briefs . . . in other words to flesh out the case a little better . . . I think we’re here, the nine of us, and we can talk to each other anytime we want to, so I wouldn’t use that thirty minutes, the advocate’s time, to talk to each other. But again as I said earlier, we all learn differently . . . When I first came to the court, the court was much quieter than it is now. And perhaps it was too quiet, I don’t know. I liked it that way. It left big gaps so you could actually have a conversation. I think it’s hard to have a conversation when nobody’s listening, when you can’t complete sentences or answers . . . I think you should allow people to complete their answers and their thought . . . and I find that coherence that you get from a conversation more helpful than rapid-fire questioning.
If you listen to an oral argument today, it is indeed dominated by the pointed questioning from justices. Yet as Thomas pointed out, it was not always this way. Orin Kerr wrote: “Before Justice Scalia’s arrival on the court in 1986, oral arguments were very boring. The justices rarely spoke. Lawyers could go on for several minutes before anyone would pose a question. In the last 25 years, that style has fallen out of favor. Almost all of the members of the court today are active questioners in the Scalia mold. As a result, lawyers arguing before the court now are pelted with questions from the moment they begin.”
Reasonable people can disagree about whether asking questions during oral argument is useful. But the important question Thomas’ critics must answer is whether asking questions are necessary to developing a coherent understanding of a case, or writing a cogent opinion. History suggests it is not.
In the early days of the Court, oral argument could stretch as long as ten days. Supreme Court litigator Stephen Shapiro wrote that advocates like Daniel Webster and William Wirt could develop long arguments with reason and rhetoric, and were unobstructed by questions from the justices. A contemporary observer noted: “Counsel are heard in silence for hours, without being stopped or interrupted… The Judges of the Court say nothing.” While the introduction of longer briefs means oral argument serves a different purpose today, it might still be asked why John Marshall or Joseph Story declined to pose hard questions when they were even less encumbered by time-restraints. And I suspect few would accuse Marshall or Story of intellectual weakness, or lack of insight when they wrote their seminal decisions.
Even important cases of more recent vintage may stand for the proposition that a refrain from questioning is no hindrance to crafting momentous law. Youngstown v. Sawyer (1952), the Steel Seizure Case, defined the framework by which we still measure presidential authority. The New York Times and Associated Press coverage reported a “throng that queued up hours before Noon” to attend that oral argument, and how seats had to be “strictly rationed . . . Hundreds more stood outside the chamber.” John W. Davis, the lawyer for the steel industry, “spoke for about eighty-five minutes [with few questions from the Justices during his presentation]” (original brackets). Though the Solicitor General received more questions, Justice Jackson remarked at the end of the SG’s time, “This is not something that may be decided in the light of one day’s discussion. The arguments may just begin when argument stops.” The Youngstown case, holding against the President’s seizure, produced a majority opinion, five separate concurrences, and a three-justice dissent–Jackson’s concurrence would be remembered as the most influential concurring opinion in history. No one would accuse any justice of inattention or lack of interest for the absence of questioning during Davis’ argument.
United States v. Nixon (1974), which would lead to Nixon’s eventual resignation, is another case where the justices were unquestionably interested in both the subject matter and in contributing to an occasion of historic importance. Though an unanimous opinion, every justice recognized the stakes of the case, and contributed to the decision ultimately delivered by Chief Justice Burger. It was also an oral argument that is notable for a lack of continuous questioning. While not given the same temporal freedom as Webster or Davis, Leon Jaworski was allowed to make his case against the president for over six minutes before the first one was levied, and his argument contained long stretches in which he was allowed to speak unmolested.
As a fan of oral argument, I enjoy the verbal sparring and the extemporaneous thinking questioning creates. But to indicate that Thomas’ non-participation is somehow indicative of a lack of intelligence or lack of regard is to ignore the history of the Supreme Court in oral argument. If Justice Marshall could write McCulloch without asking questions, if thoughtful justices could write passionately in Youngstown without lodging inquiries, then non-participation creates zero injury toward the resolution of a case. And if Thomas decides to remain silent in every argument, as is his right and discretion, then the aggregation of those decisions is still zero hindrance to his ability to fully consider the cases before the Court.
On a final note, it is worth observing that none of the publicity surrounding Thomas’ silence is corrective in any way. If we know anything about what motivates Clarence Thomas, it is not the editorializing of the liberal media establishment–the media that contributed to, in his words, a “high-tech lynching” during his confirmation process. Indeed, it is probable that by continuing to write about it anniversary after anniversary, Thomas will merely become more stubborn in his refusal to speak during oral arguments. The question becomes, in a sense, what is the purpose of this journalism–is it merely to point out something interesting, albeit repetitively? Or is it to affect change, and persuade a jurist to rejoin his peers in oral argument? Here, perhaps the best way for the media to change Thomas’ behavior would be to remain silent.