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.

By Andrew Cohen |  December 2, 2007; 10:27 PM ET
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I agree that it was way out of line for Justice Thomas to criticize his collegues for asking questions. We amplify, clarify and challenge assumptions by asking questions. I wonder, however, if Justice Thomas may be unsure of himself intellectually and avoids questioning for fear of making a faux pas. When you write an opinion you certainly have more control over what is disclosed (versus a spontaneous question).

Posted by: Bill Ferrarone | December 3, 2007 10:22 AM

Ask a psychiatrist or psychologist about how an ambulatory, mute patient with a zip-locked mouth is often interpreted. HOSTILE. Reading Thomas' latest book, the intense anger leaps from the pages. That man is a black robed volcano who is quietly stoking the fires inside. He belongs on that court like I belong on the throne of England. But then I don't choose the attornies for the court.

Posted by: zaney | December 3, 2007 10:26 AM

I believe Mr. Thomas follows a very basic principle; better to be thought a fool and remain silent then speak and remove all doubt.

Posted by: mcdex22 | December 3, 2007 10:55 AM

Had the Bush machine waited until George the Second was enthroned, Clarence's time on the bench could have made him a bona fide candidate for the court. As it is, he seems little more than a GOP hack, and an cry baby boot. Poor Clarence.

Posted by: Bushie | December 3, 2007 11:03 AM

I agree with Mr. Cohen's explanation of the importance of knowing how judges think. Asking questions is one way. An actual requirement that all opinions include an explanation would better enable the public to understand the law and the degree to which it's interpreters follow the law and the Constitution.
In Maryland, where I live and fight my ongoing custody battle, judges are not required to provide any explanation when they take your child from you and their superiors on the appellate court freely acknowledge they won't overturn a lower court ruling, even if they think it was wrong. We are left with explanations from our attorneys such as "she's tough on men" or "it's the mommy rule".

Posted by: rod schwartz | December 3, 2007 11:11 AM

It is grossly ahistorial to say that a justice who does not ask questions during oral argument "mocks the art of judging." The current practice of judges asking lots of questions is new. As recently as the 1980s, justices were relatively silent during oral argument. If you listen to, for example, the second Roe v. Wade argument (C-SPAN radio plays it now and then), you'll hear lots of lawyer, but very little from the justices.

In fact, when Roberts became Chief, it was reported (by the Post, I believe) that he communicated to the other justices a sense that too many questions were being asked, and that advocates were not being allowed sufficient opportunities to make their cases to the Court.

If you want to judge the intellect of Thomas, or any other justice, read his or her opinions.

Posted by: Trenchant | December 3, 2007 11:24 AM

Shortly after 9-11, a former military person was very, very angry that people were openly discussing vulnerabilities in some public facilities. "You're giving information to the enemy" he wrote in a screaming tone. He suggested that this information should be kept confidential and slipped unobtrusively to the proper authorities, who would then handle the problem in a discreet manner.
Wellll, that's a great theory, but it seems to me that it works quite badly in practice. Information that's slipped to the recipient in a confidential manner tends not to get acted upon. If it's bothersome or inconvenient to deal with it and there's no threat of public embarrassment, things tend to get cubbyholed in a way that no one ever learns about it.
Same problem arises with Justice Thomas in this article. If he has serious, relevant questions, but figures they're no one's business, it matters to the public that these serious, relevant questions may never get publicly articulated.

Posted by: Rich | December 3, 2007 12:28 PM

Stephen Breyer should give a speech in which he criticizes Justices who sit like a bump on a log and don't ask questions. Maybe Thomas would then understand that matters of judicial style should not become sources of controversy. Lord knows, the Court has enough problems maintaining unity.

Posted by: Clay | December 3, 2007 12:44 PM

Justice Thomas should be removed from the court, in my humble opinion. Justices are removed, to the best of my knowledge, for conduct unbecoming or bad behavior. Thomas, has on many occassions, exhibted his unfitness to serve on the highest court in the land. His judicial temperment is sorley lacking and his grasp of the law is questionable at best, and he has an Axe to grind. Not exactly the kind of person to be sitting in judgement on any bench. As long as the appointment process has more to do with politics than the law, we will have more sub*par justices such as the ever pathetic Thomas.

Posted by: Empiricist | December 3, 2007 02:16 PM

What makes Clarence Thomas so doggedly silent is that he cannot sustain any compelling legal disoourse. He is a faithful conduit for the thoughts of others. Better to keep his own (i.e. Scalia's) counsel.

Thomas is not the first empty mouthpiece on the Court. There have been others on both the right and the left. But why-oh-why does he want to draw attention to this?

Posted by: William Madden | December 3, 2007 03:31 PM

I can see two reasons the Justice Thomas remains silent. 1) How well do the opposing lawyers make their cases. 2) Do they offer anything not already not said (in their briefs)? A lawyer should bring their A+ game, to the US Supreme Court.
There should only be questions if something is _not_ clear, already. Or, if a more concise, clearer way can be offered as a question. Information can be exposed, or hidden, in a barrage of words. Often, in fact, it is for the purpose of hiding the real point that there is a barrage of words.
The time to "inform, influence other judges," should be in conference. To show the "reasoning," should be in the opinions, as handed down.
This is the USSC, not "traffic court," or Judge Mathis. AIUI, Arguments" are to reinforce the information/cites already given, and possibly add _new_ information. It is supposed to be the "Pro Bowl," of courts and judging. Only the very _best_ argue a case there. It is absolutely not the place for limited, dogmatic thinking, and presentation of information.
If you can't frame, and present your case, in a rational, logical manner, then: a) it shouldn't be there, or b) you shouldn't.

Posted by: Walter Daniels | December 3, 2007 04:52 PM

It is amazing that you think that public agencies have enough positions to hire all the law school graduate. Furthermore you would believe that these attorneys would be valuable to these agencies. In most cases two years are required to train public lawyers especially litigators. Inexperienced law clerk are only valuable to judges because they are closely supervised by the judges. In public agencies, most supervisors are responsible for at least six lawyers. This idea has little or no merit.

Posted by: Arthur Garcia | December 3, 2007 07:01 PM

good to see the Washington Post and liberal bloggers share a distaste for uppity Black people (bets not use the N word you all have outlawed) who don't hew to their line. Cohen, Bill, zaney..the rest of "ya'll"...where thw nhite robes hangin?

bahahahahaha. other justices have been far more transparent and you all run amuck on this? well...ahemmm...a closet racist is a closet matter what edge of the political spectrum he/she comes from!

good work people!

Posted by: lmao | December 3, 2007 08:07 PM

What utter nonsense. Have you no idea whatsoever how appellate courts work? Briefs are submitted months before oral arguments. Justices and their clerks make their decisions based on the law and facts of the case, based on their extensive research and legal philosophies, long before oral arguments. Lawyers' advocacy is and has been generally meaningless historically. What could a lawyer possibly say that a justice's team of clerks haven't already found on Lexis?

Of course those on the left, like Cohen and many of the posters here, assume that Thomas's reticence is evidence of his inferior intellect. The exact same sort of comment that lefties would be calling racist if a conservative made it about, say, Thurgood Marshall. Anyone who has heard Thomas's round of interviews for his new book make it clear what a sharp mind he has. Of course, he's a black conservative so the left hates him. After all, blacks should know their place, right?

How sad that we live in a baby boomer-influenced, post-Clinton world, where it is all about me, look at me, I am so smart. If anything, Stephen Breyer's incessant chattering on the lecture circuit is unprecedented and undignified.

Posted by: J Downs | December 4, 2007 03:06 AM

You make the point that some of the judges ask questions in order to "pursuede" the other judges, "friendly" questions. This of course logically presumes that the justices asking so-called "friendly questions" have already formed their opinions on the matter and are attempting to augment one side or the other's argument. Isn't this bias exactly what a judge without an agenda would avoid. Perhaps Justice Thomas has viewed this type of behavior and formed the opinion that if an attorney cannot successfully articulate their case on their own, (ie, without the help of a Justice that knows his or her colleagues on the court intimately).... they deserve based on our system of justice to lose the case.

Posted by: J Boswell | December 4, 2007 09:21 AM

I always thought that Justice was supposed to be blind, not dumb!

[That's dumb as in silent.]

Posted by: DC | December 4, 2007 02:59 PM

Has anyone considered that Justice Thomas DOES NOT write his opinions, and thus cannot speak a word (or ask a question) during arguments or ear that it might interfere with the direction his aids might want to take in their "Thomas Opinions?" He is as bitter now as he was when Anita Hill rejected him, and he uses this pulpit to strike out at those of us who look like him....well, sort of, who always knew he was lying and never considered him worthy of Thurgood Marshall's seat. And yes, it was Marshall's seat because JUstice Thomas would NEVER had been nominated to replace a white man!

Posted by: J. H. Wilkie | December 4, 2007 06:25 PM

Justices Thomas, Scalia, Alito, and Roberts represent one of the greatest injustices ever levied against America, in my opinion. Both President George Bush Sr. and W have done more to divide our country in their selections of justices, U.S. Attornies, Secretaries of Defense and cabinet members that I view it all as treason against our nation.

Sadly, there are soo many shortsighted followers of the extreme right that are willing to go along with most anything in hopes of gaining a few crumbs from the booty table. We don't need to worry about outside enemies destroying us because we are doing such a devastating job internally on ourselves.

Posted by: Tommy | December 4, 2007 06:35 PM

J. Downs, wrote an excellent response to this issue and I agree fully. Many Judges are like politicians, they like to hear themselves talk and rattle on with saying a thing. I personally respect Justice Thomas and it just kills the liberals to have a conservative, black Judge on the Supreme Court. When he speaks, I generally listen closely, because I know it is worth hearing. Other Justices, I cannot say the same about.

Posted by: Patrick Rodgers | December 5, 2007 12:41 PM

Sounds like Mr. Rodgers is prejudiced. As in having pre-judged.

Posted by: DC | December 6, 2007 03:56 PM

I hit review for my comments ref: Clarence Thomas but they flew off into the twilight zone. Any chance they can be retrieved? Thanks. JJR

Posted by: janisjoplinrevival | December 9, 2007 03:56 PM

I view Clarence Thomas as a curiosity. For the rest of my life, I will never forget the slash and burn techniques he and the "Honorable" U.S. Senators from Missouri and Pennyslvania perpetrated on an African American female, professor Anita Hill, for elevating her EEO sexual harassment complaint to the floor of Congress. Then, his cronies from Wall Street piled on her as witnesses - as in "mobbing". For him to play the "race card" back then and portray himself as the "victim" and Professor Hill as the leader of a lynch mob, was a disingenuous ploy he worked to his advantage. His years as head of the EEOC, no doubt, gave him plenty of case law material to incorporate into his claims of "discrimination". The American Bar Association, among others, at the time provided a written statement to the press that Clarence Thomas was ill prepared and unqualified to sit on the U.S. Supreme Court. Once again, Clarence Thomas is the "victim" to those who seek veneration by his elevation to the Supreme Court. There are many, many other deserving African American males in our society that also deserve to be placed on pedestals and the media spotlight focused on them - however, none of them sold their souls to make it to the Supreme Court.

Posted by: janisjoplinrevival | December 9, 2007 04:00 PM

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