Tomorrow will be an anniversary of sorts for the U.S. Supreme Court. The last time Justice Clarence Thomas made a comment or asked a question during oral arguments at the Court was Feb. 22, 2006 – five years ago tomorrow.
Thomas’ silence has long been a subject of chat among legal watchers. During oral arguments, if the justice leans forward in his seat reporters in the press galley perk up, wondering if that will be the day that the justice decides to chime in. Veteran New York Times scribe Linda Greenhouse once called Thomas’ determined refusal to take part in oral arguments “a weirdly compelling example of performance art.”
Thomas himself has spoken on the subject of his silence. In his opinion, oral arguments work as more of a vehicle for justices to advocate their own position – or give attorneys a hard time – than for lawyers to sway the justices.
“So why do you beat up on people if you already know? I don’t know, because I don’t beat up on ’em,” Thomas said in an Associated Press report in 2009. “I refuse to participate. I don’t like it, so I don’t do it. …All nine of us are in the same building. If we want to sway each other we know where we are. We don’t need oral arguments to do that. It doesn’t make any sense to me.”
That’s not to say Thomas is completely silent during oral arguments. He’s often seen whispering and even laughing with the justices seated to either side of him on the bench – Justices Antonin Scalia and Stephen Breyer. But for the most part, Court spectators can witness the justice thumbing through briefs, or leaning far back in his leather chair with his eyes closed in apparent refection. The only time his voice has been heard during the last five years of the Court’s sessions is when he has announced the opinions he authored before oral arguments began.
Still, his decision not to participate in oral arguments has spurred debate in the legal community. Some simply say it’s a matter of the justice’s personal style.
Others are pleased with Thomas’ approach. “It reflects humility on his part,” Steffen Johnson of Winston & Strawn in Washington told the National Law Journal‘s Tony Mauro.
Vikram Amar, a professor at UC David School of law, agrees with Thomas. “I don’t know why the justices need argument to talk to each other,” Amar wrote in the New York Times. “They can write each other memos before argument is heard. And they can speak directly to each other in chambers, or in the conference after each argument sitting, at which time tentative votes in the argued cases are taken.”
But others are critical of the justice. “By removing himself from oral argument, Justice Thomas’ opinions do not benefit from the full adjudicative process designed to test theories in open court,” wrote David Karp argues in a Florida Law Review article, according to Mauro. “Many of his opinions, therefore, read less like the product of actual litigation, and more like constitutional commentary.”
Columbia Law School professor Jamal Greene said Thomas’ lack of participation evidences a rigidity of opinion, and a lack of desire for his views to be changed. “It is difficult for a silent justice to win over colleagues, but he may not care to,” Greene wrote in the Times.