Clarence Thomas's Unhealthy Silence
Supreme Court Justice Clarence Thomas has been criticized over the past few days for the taunting remarks he made during a speech about the justices asking questions of lawyers during the court's oral arguments. "My colleagues should shut up," he (jokingly?) told a crowd last week in Michigan. "I think that they should ask questions -- but I don't think that for judging, and for what we are doing, all those questions are necessary."
There are a lot of things wrong with a sitting justice making such a remark. Dahlia Lithwick focused on the notion that Thomas's silence makes the court out to be a kind of vending machine, dispensing decisions without disclosing much about its thinking. As someone who has sat as a judge -- okay, I admit, it was in moot court during law school -- let me offer another reason why it's disheartening to live in an age of a Silent Justice.
Think of an important conversation you have had lately at work, school or home. Now imagine that what you say will have a far-reaching impact upon the person with whom you are speaking -- and millions more. Now imagine that same conversation with several other people in the room. They all are asking questions of the person with whom you are speaking, who is seeking help, and he or she is answering them as clearly as possible.
We experience this scenario over and over again in our lives. We ask questions of our co-workers, family members, government officials, even sales clerks.
This give-and-take is especially important in the law. Lawyers who appear in court only want judges to hear the facts and law that support their own causes. Often the opposing counsel will offer the judge the "other side of the story." But sometimes the judge must lift the heavy water herself. No lawyer can or will answer in advance every reasonable query that any case generates.
Now imagine remaining silent during this process, year after year, conversation after conversation, argument after argument. Imagine hearing the vital, articulate conversation unfold around you, session after session, without forming in your own mind a relevant question. Or, worse, imagine forming questions during these sessions but choosing not to ask them because of some deep-seated and well-chronicled resentment.
This is Thomas's unnatural world on the Supreme Court. He's a judge who mocks the art of judging.
It is preposterous to claim, as Thomas does, that it is unnecessary for the justices to ask questions during oral argument. Perhaps, as he implies (and as many court observers long have suggested), the justices really have all made up their minds about a case before oral argument is held. But even then, questioning is important.
For example, the justices frequently ask "friendly" questions of the lawyers, hoping to elicit an answer that persuades another justice of a particular point. Or sometimes a justice will ask a question that gives a hint to the legal world about how to frame the issues for the next case to come along on the same topic.
I could go on with reasons why judges should ask questions of lawyers appearing before them. I cannot, however, offer a single reason why it is funny or stoic or appropriate for one of the nine most important judges in the world to remain defiantly mute during the only public process the court allows.
Please email us to report offensive comments.
Posted by: Bill Ferrarone | December 3, 2007 10:22 AM
Posted by: zaney | December 3, 2007 10:26 AM
Posted by: mcdex22 | December 3, 2007 10:55 AM
Posted by: Bushie | December 3, 2007 11:03 AM
Posted by: rod schwartz | December 3, 2007 11:11 AM
Posted by: Trenchant | December 3, 2007 11:24 AM
Posted by: Rich | December 3, 2007 12:28 PM
Posted by: Clay | December 3, 2007 12:44 PM
Posted by: Empiricist | December 3, 2007 02:16 PM
Posted by: William Madden | December 3, 2007 03:31 PM
Posted by: Walter Daniels | December 3, 2007 04:52 PM
Posted by: Arthur Garcia | December 3, 2007 07:01 PM
Posted by: lmao | December 3, 2007 08:07 PM
Posted by: J Downs | December 4, 2007 03:06 AM
Posted by: J Boswell | December 4, 2007 09:21 AM
Posted by: DC | December 4, 2007 02:59 PM
Posted by: J. H. Wilkie | December 4, 2007 06:25 PM
Posted by: Tommy | December 4, 2007 06:35 PM
Posted by: Patrick Rodgers | December 5, 2007 12:41 PM
Posted by: DC | December 6, 2007 03:56 PM
Posted by: janisjoplinrevival | December 9, 2007 03:56 PM
Posted by: janisjoplinrevival | December 9, 2007 04:00 PM