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So Is It Just Me,
or is the Associated Press's article, "Justice Thomas Silent Through More Than Two Years of Supreme Court Arguments," really rather lame? The "story" here, as reported by Mark Sherman, is that Justice Thomas hasn't asked a question at oral argument in two years. That's right, two years. So the old story that the press has reported on often is that Justice Thomas almost never speaks at oral arguments. The new story is that the silence has reached a two-year mark. What's next — another story at the three-year mark? Or maybe a story when Thomas next asks a question?

  What makes these sorts of stories unfortunate, I think, is that they tend to misrepresent the significance of Thomas's silence. Most readers assume that the Justices use oral argument to learn about the lawyers' arguments. If you make that assumption, then not asking questions suggests a lack of interest in learning about the Court's work, which is obviously pretty bad. In her commentary on the AP story, Dahlia Lithwick helps this misimpression along by suggesting that Justice Thomas not only doesn't ask questions, but acts like he's not interesting in being there.

  But my sense is that much of the questioning at the Supreme Court is about persuasion — by the Justices, not of them. Supreme Court arguments can be kind of like jury trials in which the Justices with strong views act as the lawyers; the lawyers before the Court act as the witnesses; and the swing vote Justices play the role of the jury. In these cases, the Justices with strong views often ask questions like a trial lawyer might examine a witness. Friendly witnesses tend to get softballs and open questions designed to elicit favorable testimony, while hostile witnesses often get leading questions designed to expose the weakness of the opponent's case.

  Viewed from this perspective, oral argument can become sort of like a chaotic combined direct and cross examination, with much of the questioning designed to persuade the "jury" of the swing votes — formerly O'Connor, now Kennedy. It doesn't happen this way in every case, I should emphasize, but the dynamic is often present. (The questions of the swing-vote Justices don't fit into this framework, as they are usually focused on figuring out their own votes rather than trying to use questions to persuade other Justices.)

  If you have this understanding of oral argument, the meaning of Thomas's silence is pretty different than what the public might think from reading the news reports about it. Justice Thomas has strong views of his own, and yet he is not interested in "playing the game" at oral argument of trying to use questions to persuade swing votes. Maybe that's a good thing, and maybe it's a bad thing. But it's quite different from suggesting a lack of interest in the Court's work.
tarheel:
Prof. Kerr:

I'm interested to hear what part of the AP story gives the impression that Thomas is silent because he isn't interested? I actually thought the reporter did a pretty good job of letting Thomas himself explain his silence.

Is this a front-page story? No. But I think a squib story like this is more than legitimate on the two-year anniversary of his last question. As a SCOTUS junkie, I find it interesting. Nothing more, nothing less.
2.26.2008 7:57pm
EvilDave (mail):
See Justice Thomas has up and left the Democrats plantation and he needs to be put back in his place (in their view).
Democrats think they own black people, and if one of them up and leaves the Democrat's plantation they lose their black status and become nothing more than race traitors (see Thomas, Rice, Steele, etc.).


Remember the Democrats fought long and hard against the Civil War and the Emancipation Proclamation.
They have also fought long and hard against Dr. King's dream. If America ever fulfills Dr. King's Dream and white and black are equal, then the Democrats lose the identity politics that is the core of the Democrat vision (see the primaries where they are fighting to decide if gender or race is their primary focus if the party). They'd lose the driver of affirmative action, and white guilt. They would also have to debate based on facts as opposed to just calling people "racists" and walking away (i.e. playing the player not the ball).

They have gone after Thomas since he dared to stop playing their game. They lynched and smeared him with the animal rapist black man tag in the hearing, and now it is time for another "Dumb N" (too dumb to ask questions) smear.

But of course the Democrats are more enlightened than the rest of us.
2.26.2008 7:58pm
Soronel Haetir (mail):
One thing I would interested to know is how often a justice is presuded one way or the other by oral argument. I would think the briefs would have far more value in doing so. Which brings up the perenial arguments over whether to allow cameras in SCOTUS.

If justices form little of their opinions from the oral argument then it would argue against cameras. It could also argue against holding the argument at all.

If on the other hand justices often derive their opinions from materials argued over then the cameras should be there. I find the court's current practice of recording audio only and then releasing it months later in most cases to be repugnant.
2.26.2008 8:09pm
John (mail):
My sense of the Sup. Ct. arguments I have seen is that the Justices ask questions (a) to find out stuff they really don't know (rare), (b) to try to push your argument to limits where it will fall apart and see if it can be defended or not (common) and (c) to make statements clothed as questions to let other Justices realize their arguments won't hold water, and have your answer make the point (sometimes).
2.26.2008 8:12pm
therut:
I imagine Justice Thomas finds the games the Justices play to be distastful and below him. He stays above the childish antics. For that some hate him. I say good for him. He has dignity. Something that drives his opponents crazy.
2.26.2008 8:27pm
Tern (mail):
Let's take the recent District of Columbia 2nd Amendment case. How many briefs have been filed? And, of course, there is the trial court record of proceeding and the appellate proceeding. Just how vital is oral argument anyway? I think that a reasonable decision can often be made without even listening to the oral argument, let alone participating in it.
2.26.2008 8:34pm
Thoughtful (mail):
Orin: end of second paragraph: " but acts like he's not interesting in being there."

interestED...
2.26.2008 8:39pm
hattio1:
Isn't that really the most charitable view of Justice Thomas not asking questions, even if you assume that he already has strong views? I assume he doesn't ask questions because there isn't a damn thing that's going to change his mind. Now, that's probably true about the other justices too. But, at least in theory, their minds are open to being persuaded.
I'll second what another commenter said. If the justices already have their minds made up, why do we have oral argument at all.
2.26.2008 8:46pm
CVme:
It is just as simplistic to say that S.Ct. oral arguments are about persuasion by the justices of the "swing vote" as it is to say they are about the Justices learning about the case. After seeing, hearing, and reading many arguments, the questioning has as many purposes as you can think of times nine--or at least times eight.

Only about a third of the cases in OT06 were decided 5-4, and only 13% in OT05, so I don't think it makes sense to say that questioning is mostly about justices attempting to persuade the swing votes. In most cases, the case will not be decided by the swing vote.

Each justice has his or her own approach to questioning. Scalia, for instance, clearly enjoys the back and forth with the advocates, enjoys getting laughter from the audience, and often seems to want to "win" the argument somehow. Breyer similarly likes the back and forth, and uses complicated hypos (sometimes loaded) to make his points, or in fact to search for answers in ares that he is unsure about. The Chief seems to want a good argument in all cases and his questions often probe the weaknesses of both sides. The best that can be said for Thomas is that he is not interested in arguments for any of these reasons. He does not enjoy the back and forth, is not interested in entertaining the audience, scoring points one way or the other, or making sure the arguments hold up under questioning.

Like tarheel, I think it's interesting that it's been two years since Thomas asked a question. I would be interested to know what his longest stretch of no questions was, and yes, I'll be interested to see if he makes it to three years.
2.26.2008 9:03pm
lawclerk3000:
Why would not asking a question mean that he won't allow himself be persuaded? Couldn't you just as easily argue that he doesn't ask questions so that the attorneys can use their time to make their case (and thus attempt to persuade).

What I find interesting is that at the Circuit level, a lot of the questions are about clarifying factual questions that are unclear from the briefs. Does anyone know if the Justices have time to review the actual record before oral argument? If not then I would think they too would have a fair number of questions about the facts of the case.
2.26.2008 9:07pm
tvk:
Orin,

I think you are being too charitable to Justice Thomas in this respect. To be sure, some of what goes on at oral argument is the Justices trying to "play the game," and thus Justice Thomas' refusal to partake is admirable in a way, and certainly principled at least.

But say that 60% of the questions are that type of grandstanding, and Justice Thomas refuses to do so. That should mean that Justice Thomas asks questions at a rate of only 40% the rest of his collegues. Not a rate of almost zero.

Now perhaps Justice Thomas thinks that all the other questions his colleagues ask are equally useless. That the number of interesting occasions warranting a question in fact borders on zero. But that kind of derogation of the value of oral argument would seem, to me, rather extreme.
2.26.2008 9:26pm
williamandmaryalum (mail):
Amen, Orin. It's rare that someone actually sticks up for Justice Thomas. At my law school, he is routinely criticized by more liberal students as the least-qualified justice. Thanks for showing that there is more than one way to view his judicial temperment.
2.26.2008 9:34pm
Tony Tutins (mail):
In corporate life, at formal presentations there are always a few managers who haven't read the materials, or who feel that they can look like they're earning their pay by asking a "stumper." These are the people who ask questions. Those who don't, by and large, are people who have done their homework and who don't have to show off. Even if you have a legitimate question, you might as well wait to see if one of your colleagues is going to ask it. Remember, this is oral argument, not oral questioning. So Justice Thomas's non-asking of questions is either a non-issue, or actually praiseworthy.
2.26.2008 9:40pm
Reg (mail):
With two years down, he might as well see how long he can extend the streak.

Knowledgeable lawyers using this criticism against Thomas as being duplicitous. Thomas has a jurisprudence that doesn't require a lot of effort to apply, as he isn't often balancing competing interests or looking at which policy leads to a better outcome. Also, SCOTUS handles few enough cases that the justices don't need oral argument in most of their cases. They have very smart clerks, very good briefs, and plenty of time to figure out the answers for themselves. Its done more out of a courtesy to the lawyers, the parties, and tradition.
2.26.2008 9:44pm
BruceM (mail) (www):
Orin: I actually agree with you (wow!) about the nature of most oral arguments being a means for the justices to ask questions designed to elicit answers meant to placate swing votes, or possibly to show problems with the positions of other justices ("If we were to rule in favor of your opponent, wouldn't that open up the floodgates of litigation?"). I've read many OA transcripts where I could tell Justice A asked a particular question for the benefit of Justice B. I'm not sure I'd categorize this as "games" though, since implicit in the job of a Supreme Court Justice is to build a consensus, if not for the opinion of the Court, then for solidarity in dissent. The justices go in to oral argument having a pretty good idea of how they are going to rule in the case.

One thing I notice quite often is when a Justice believes he/she is in the minority and doesn't like the way the majority intends to rule, the Justice will ask a lot of OA questions designed to convince the rest of the Court that a ruling on the merits is improvident based on the existing appellate record and the case should be remanded for further proceedings (they might fashion a new balancing test or a list of factors the lower court should consider upon remand).

But as you concede, while this dynamic is often present, not every question by every Justice is for this purpose. Pulling a reasoned figure out of my ass, I'd say 60-80% of questions posed by the Justices at OA are straightforward questions or concerns they have about the case and they really do look to the lawyers to assist the Court by providing straightforward, unequivocal answers. This is where I think a little poorly of Justice Thomas. I can respect him for not wanting to use OA as a backhanded way of prodding his colleagues on the bench in one direction or another. I can also respect him for not asking questions for the sake of asking questions. But in two years he's read the briefs of hundreds of cases to be argued, pondered over them with his law clerks, thought about the cases before Oral Argument, and he has not had so much as a single question to ask of any party? Not one? Is it intellectual superiority ("there's nothing they could tell me about the case that I don't already know")? Is it lack of curiosity? Is it distrust of the lawyers at OA? I really can't imagine that an intelligent jurist could not come up with a list of 5 to 10 really good questions to ask the lawyers at the oral argument of any case that makes it up to the SCOTUS. If I were a supreme court justice, I'd come to oral argument prepared with at least 5 questions for each side.

The implication in the "no question in 2 years!" article is that Jusice Thomas doesn't care. I don't believe that to be the case at all. Yet it seems like Justice Thomas is intentionally wasting an opportunity to learn more (however marginally) about the cases he and his fellow Justices are entrusted by the country to decide. Why should he not participate? Plus, insofar as Thomas is a fairly intelligent guy, he could contribute to the overall value of oral argument. Whatever the reason is that he doesn't ask question, I know it's not because he's too stupid or lazy to come up with any.
2.26.2008 10:04pm
OrinKerr:
BruceM,

Justice Thomas has answered these questions many times -- have you not read his answers, or have you read them and decided that you do not believe him?

As for your sense of things in your last two paragraphs, I just disagree (unsurprisingly).
2.26.2008 10:09pm
Randy R. (mail):
As much as I dislike Thomas, I would much rather prefer his silence to the grandstanding of Scalia at these oral arguments.

What's that old saying, about keeping your mouth shut and have people think you are a fool, rather than opening it and thereby dispelling all doubt?
2.26.2008 10:15pm
Ignatius (www):
I was at oral argument for Justice Thomas's last question in Holmes v. South Carolina. When he began to speak in his deep, bellowing voice, every head in the gallery swiftly turned toward him and everybody sat up in their seats to hear it. It was quite a sight. He quizzed the lawyer about his earlier characterization of the South Carolina's Supreme Court's opinion; Thomas seemed to believe he had misstated the content of that opinion. An oddly probing question for an uninterested justice.
2.26.2008 10:28pm
David M. Nieporent (www):
Yet it seems like Justice Thomas is intentionally wasting an opportunity to learn more (however marginally) about the cases he and his fellow Justices are entrusted by the country to decide.
Uh, every time a justice opens his mouth, he's taking time away from the person who can help the justices learn more about the case.

That's what's really puzzling about this criticism -- it's as if people think that if the justices aren't asking questions, everyone sits there and stares at each other in silence until the light goes off. But when the justices aren't talking, the lawyers are.
2.26.2008 10:32pm
alias:
Perhaps these stock stories about Justice Thomas's silence should include a paragraph describing how Supreme Court cases actually work, and how, by the time the argument starts, each Justice has likely studied multiple briefs, done tons of research, had his/her clerks do tons of research, gone through bench memos, and (perhaps) gone 90% of the way toward making up his/her mind up about the case.

I wonder how many people who read these articles are even aware of the existence of merits briefs.
2.26.2008 10:46pm
Jim at FSU (mail):
I bet he speaks during Heller.
2.26.2008 10:51pm
BruceM (mail) (www):
Orin, I've read Thomas's answers, but he never really answers the question directly, except as to say he will only ask questions if he finds them helpful. That begs the question why finds so few questions helpful. The article you link to also has this gem:

Suppose surgeons started discussing the merits of removing a gall bladder while in the operating room, Thomas said, as quoted by U.S. News &World Report. "You really didn't go in there to have a debate about gall bladder surgery," he said. Similarly, "we are there to decide cases, not to engage in seminar discussions."

I can't believe a Supreme Court justice would make such an inane comparison. Talk about comparing apples to oranges. Gall bladder surgery is not called "oral argument"... They are "there" at the Supreme Court in the abstract to "decide cases" but they are "there" at oral argument to listen to the parties argue their cases and ask them questions not answered in their briefs. At Oral argument, the Justices "go in there" to listen to the advocates and ask questions of them to assist in deciding the case at hand. Oral argument is particularly important at the Supreme Court, where every decision affects public policy and potentially millions of people.

The purpose of oral argument is to assist the court. Each court has its own list of factors it will consider in deciding to hear oral argument in a particular case or submit the case on briefs. While I doubt many cases are actually won or lost at oral argument, courts would not waste the time of having oral argument unless it provided a net benefit to the appellate process.
2.26.2008 10:57pm
BruceM (mail) (www):
David: unless the justices ask questions, the lawyers just give a prepared speech summarizing the points made in their briefs. If Oral argument were just a chance for the lawyers to give a 30 minute, uninterrupted speech to the court, then I'd completely agree with Justice Thomas that it would be a complete waste of time. Whatever could be said in that speech could have been written in the briefs. This is even more evidence that the primary purpose of oral argument is for the court to engage the parties. OA is the only interactive stage of the appellate process.
2.26.2008 11:03pm
OrinKerr:
BruceM,

You are incorrectly assuming that U.S. Supreme Court arguments are like oral arguments you have experienced in your practice. But the Justices hear only 65 cases a year, and they each have 4 or 5 clerks: by the time gets to the argument, the Justices know the case as well as the lawyers do.

In any event, I assume that nothing I say could persuade you, so perhaps we should just tag this BruceM/OrinKerr disagreement # 4,325 and move on.
2.26.2008 11:04pm
George Weiss (mail):
Orin:

"the Justices hear only 65 cases a year, and they each have 4 or 5 clerks: by the time gets to the argument, the Justices know the case as well as the lawyers do. "


if this is true-and its also true that oral arguments are really just an extension of conference (in that the justices are using the time to convince other justices)..perhaps justice Thomas is right to go on strike here and not play the game.

imagine if the court ABOLISHED oral argument. they could hear way more cases than they hear now (which i believe would be a good thing for many reasons..chiefly to resolve long outstanding circuit splits that just cant get room enough now.)..and if the current point of oral argument is just an extension of conference..then the court isnt really loosing its opportunity to do things it already does to rule on cases.

OTOH: it is true that there must be other reasons the court asks questions during oral argument..since the swing justices also ask...maybe whatever that is is worth giving up to hear more cases too...after all..the justices can read the briefs..and the amici beifs..and have their clerks do any additional resaerch...so whats the problem?
2.26.2008 11:25pm
BruceM (mail) (www):
Orin I'm not even sure upon what, precisely, we are disagreeing here. The nature of oral argument? The merit in thomas's decision not to ask questions at oral argument? The propriety of Thomas's reasoning for not asking questions at OA?

Like I said, I agree with your basic description of how oral argument works, the justices trying to convince the swing vote by questioning "witness" lawyers. But you justify Thomas's lack of questioning based on all oral arguments working that way, when you concede that "it doesn't happen this way in every case." Ehh... forget about it, I'll start preparing for disagreement #4,326.
2.26.2008 11:33pm
OrinKerr:
BruceM,

As usual, we disagree on all of the above. I think you have a basic misunderstanding about how Supreme Court arguments work, and that you are simply making up a nasty explanation that suits you for why Justice Thomas does what he does. Cf. Sunday's disagreement about the OPR investigation of the torture memos.
2.26.2008 11:40pm
Randy R. (mail):
"That's what's really puzzling about this criticism -- it's as if people think that if the justices aren't asking questions, everyone sits there and stares at each other in silence until the light goes off. But when the justices aren't talking, the lawyers are."

But some arguments need questioning! Sometimes a lawyer is making an untenable argument, or it sounds good on the surface, but isn't good in practice. Or maybe he is making assumptions that he should be making. Or his analogy is wrong. Or it sounds great, but taken to an extreme, it would require ridiculous judgments.

These sorts of things should be questioned.
2.26.2008 11:53pm
BruceM (mail) (www):
What's nasty about anything I said here? I was quite respectful towards justice Thomas in my initial response on this thread, stating that I don't believe his lack of questioning means he doesn't care about his job and that I think Thomas is a pretty intelligent guy. I have a lot of respect for justice Thomas.

However, is it impossible to articulate a disagreement with his practice of hardly ever participating in oral argument without being deemd a nasty Thomas-hater? While I can certainly respect him for not using OA as a backhanded way of prodding swing votes, I simply do not agree with his opinion that Oral Argument is like surgery and nobody should debate or question what is being done. Oral argument serves a valuable purpose (the higher the court the more important I believe it is) and by not participating, I'm of the opinion that Thomas does himself and the Court a disservice. I for one think he could ask some very pointed, interesting, intelligent questions of the advocates.

Show me where I made up a nasty explanation for why Thomas does what he does. I did call his surgery comparison inane, because it is. I'd be surprised if that's what you're upset about, and if it is, I'd love to hear you back up that comparison.
2.27.2008 12:01am
David Schwartz (mail):
Oral argument in front of the Supreme Court plays one key role that cannot be done in any other way -- it gives the advocates a chance to respond to the actual issues that the Justices consider important. Without questions, it cannot play this role, and I have no idea what possible role would be left for it.
2.27.2008 12:03am
OrinKerr:
BruceM,

Sorry if I mischaracterized your remarks. I think I may just be so cumulatively annoyed by your comments over the last few weeks that I am not giving you the benefit of the doubt any more. My apologies if I miscontrued your comments: I feel like I spend so much time responding to you that I am all BruceM'ed out.
2.27.2008 12:18am
BruceM (mail) (www):
Oh well.
2.27.2008 12:29am
Dave N (mail):
If the justices already have their minds made up, why do we have oral argument at all?
Because it is high theater. The best had to have been the day the Court heard oral argument for FAIR v. Rumsfeld. Someone (I have always assumed the work of Supreme Court Clerk William Suter, who is a retired Army JAG Major General) arranged to have 50 or so JAG officers sworn into the Supreme Court bar the very day the case was heard. Pure theater. I loved it.
2.27.2008 1:54am
George Weiss (mail):
great theater-thats why we have the supreme court..gosh they should have covered that in con law
2.27.2008 2:02am
Asher Steinberg (mail):
If you go back to oral argument from the Burger Court, just 30 years ago, attorneys used to speak for ten minutes or more uninterrupted. At the time, half the Court hardly ever asked questions. Stevens was actually one of the more vocal ones. So have questions somehow become more important to reaching a decision over the past thirty years? Of course not. Scalia and Breyer just made them popular.
2.27.2008 2:27am
Christopher Cooke (mail):
As a lawyer, I like questions from the bench because they help me represent my client better, by being able to better respond to what is on the court's mind. I hate it when a judge doesn't ask any questions.

I think it is too bad that Justice Thomas does not participate more in oral argument. I read his book, think he is intelligent, and believe he could help the lawyers out by asking questions about what is on his mind. Personally, I think the scenario of Justices asking questions to persuade the swing voters is unfortunate. I think the justices should do something novel, like talk to one another before or after the argument, if they want to do that. Justice Thomas also doesn't have to go as far as Scalia to contribute to oral arguments (Thomas does not strike as a showoff, like Scalia). I really have no idea why he doesn't ask questions now, but maybe it is because so many people have criticized his silence that he now maintains it as a point of pride (bucking the mainstream media, e.g.)
2.27.2008 2:32am
BruceM (mail) (www):
SG Paul Clement seems to think Oral Argument is not a waste of time, at least insofar as you've written a good brief.

Clement told the students the importance of oral argument depends on the written work that goes along with it.

"Oral argument matters a lot if you've written a good brief to support it."


Crostopher Cooke: Of all the reasons Thomas has given for not participating in oral argument (well, he says he "listens"), bucking the mainstream media out of spite has not been one of them. He's never really given a good explanation for routinely not asking questions. His answers usually come down to (a) I don't need to ask questions to do this job, (b) nobody should ask questions, (c) I'll ask a question if I feel it's necessary, and (d) "Thomas has chalked up his silence to his struggle as a teenager to master standard English after having grown up speaking Geechee, a dialect that thrived among descendants of former slaves on the islands off the South Carolina, Georgia and Florida coasts." (from the article linked to above... I had never heard that one before).

Most people who hate Clarence Thomas are affirmative action advocates who hate him for being against affirmative action when they feel he is unqualified for the job and only there due to affirmative action - the hypocrisy in that position is not only disgusting, it is the best evidence as to why Thomas is right about affirmative action being bad policy and denegrating those who would purport to benefit from it. Thomas is not my favorite justice, but I respect him as a jurist and as a human being - particularly after having seen that revealing 60 Minutes interview with him last year.

My one big complaint about him, though, is his refusal to participate in Oral Argument, particularly seeing as how he has completely failed to provide an adequate explaination for why he doesn't have any desire to take advantage of oral arguments to resolve issues about a case, test the logic and legal theories of the advocates, see what the advocates think about arguments made by various amici, and look for ways to avoid deciding the case on the merits (ask questions about standing, mootness, ripeness, abstention, etc).

I wonder if there is am implicit charge of racism against those who chide Thomas for not taking part in asking questions at oral argument, on the implication that anyone (such as myself) who can't accept Thomas's lack of participation at face value must be implying that it's an example of a black man being lazy and intellectually inferior. I've never thought about that until now, and while I think it's ridiculous, I am wondering if racism underlies the fascination with Thomas's lack of participation in OA, and what seems to be questioning the motives of anyone who dislike's Thomas's policy of not joining in OA. Just a thought.
2.27.2008 6:23am
alias:
BruceM writes:

My one big complaint about him, though, is his refusal to participate in Oral Argument, particularly seeing as how he has completely failed to provide an adequate explaination for why he doesn't have any desire to take advantage of oral arguments to [1] resolve issues about a case, [2] test the logic and legal theories of the advocates, [3] see what the advocates think about arguments made by various amici, and [4]look for ways to avoid deciding the case on the merits (ask questions about standing, mootness, ripeness, abstention, etc).
(numbers added by me)

All four of those things are done better by the briefs and by the Justice and his law clerks over a period of weeks leading up to the argument than by the advocates in a 1-hour oral argument. (1) and (2) are the same thing--and this is why the Justices receive briefs months in advance instead of on the morning of oral argument. On (3), most amicus briefs are useless, and the way the briefing schedule works, each party has an opportunity to respond to the useful amicus briefs against it---the respondent in its brief and the petitioner in its reply brief. When (4) is an issue that the parties might have overlooked, I'll concede that oral argument might have some special value, but it's not an issue in most cases, and I can't think of any cases in which Justice Thomas somehow failed the court by not asking questions about how the court could punt the case away. Normally at least one of the parties has a strong incentive to raise the issue, and the cert pool filters a lot of those cases out.

One of the ex-Supreme Court clerks I've spoken to has said that he preferred his court of appeals clerkship to his Supreme Court clerkship. One of the complaints he had about the Supreme Court was that oral argument seemed more like theater than anything related to law, particularly in the politically charged cases. Questions asked and answers given often had nothing to do with what the Justices needed to know to decide the case, and seemed to be more for the sake of impressing the media or the other spectators. And no, he was not a Thomas clerk.

One thing I'll add--and this may be the weakest argument in support of Justice Thomas--is that in most cases, if there's one or 2 merits questions that absolutely need to be asked at oral argument (I doubt there's ever more than 1 or 2), chances are that one of the other 8 will ask it. In the rare instances in which that doesn't happen (maybe once every 2 years), Justice Thomas might speak up.
2.27.2008 8:11am
alias:
For anyone who's ever clerked or practiced in a court of appeals, think about how some judges ask more questions than than others---every court has the judges who will monopolize oral argument if given the chance, and others who will let the advocate speak for 10 minutes at a time without interruption.

Now imagine that the court decided to sit en banc for every argument. On a panel of 3, every judge might feel the need to speak up. On a panel of 9 or 12 or 17 or whatever, it makes more sense that a few judges would rarely feel the need to ask questions.

I'm baffled by the criticism of Justice Thomas's participation in oral argument. I suspect that it often comes from people who either don't understand the role of merits briefing or who are too lazy or dim to read his opinions and try criticizing those.
2.27.2008 8:19am
Simon Dodd (mail) (www):
Christopher Cooke:
I think it is too bad that Justice Thomas does not participate more in oral argument.
The underlying assumption you're making is that being present, listening, and asking questions when you want an answer, isn't "participating" in oral argument. It assumes that you're either listening or you're participating - that is, asking questions. That doesn't seem right to me. I've read transcripts of or listened to numerous arguments where a given judge or justice asks numerous questions of the advocate for one side, but asks no questions at all of the advocate for the other side; in that situation, would you say the justice was only participating in half the argument?
2.27.2008 9:42am
Happyshooter:
The media hates him. Hates.

Because he is black they have to choke back on most of the usual methods of attack...but here they get to spin either: 1) he is dumb--without saying just that; or 2) he is cowed by his evil GOP white overmasters--while saying pretty much that; or 3) both at once for extra brownie points at the next cocktail party.
2.27.2008 9:48am
Charlie (Colorado) (mail):
Hmmm. Thomas doesn't ask enough questions: he's not interested, doesn't like to participate, is injudiciously making up his mind ahead of time. Scalia asks too many questions: he's grandstanding.

If I were Thomas, I'd suspect that whatever I did would be criticized, realize that I not looking for another job, and do what I damned well please.
2.27.2008 10:03am
NaG (mail):
Frankly, I think BruceM's idea of each judge having five questions for each side is completely inane. This is not a moot court competition. The job of a judge/Justice is to rule on the case, not to test the lawyers.

Why do lawyers think oral argument is important? Because they think any opportunity to appeal to the judge(s) is important. And I think there can be some ways that oral argument is important. While briefs tend to focus on the facts and their application to the law, oral argument gives an advocate the chance to frame his/her position in an appealing light, respond to arguments in the other side's brief, and address the long-term implications of the position they advocate. A good advocate will refrain from simply restating the arguments they have already made in writing and will instead address these items. Many a judge is happy to see a bad advocate waste time by essentially restating the obvious. The judges do not have the job of helping them speak to matters that are the judges' concern.

Frankly, I think Justice Thomas enjoys getting the goat of reporters by staying silent. The current bench is plenty hot already -- advocates can often have trouble getting a word in edgewise. And now, when Justice Thomas does speak, EVERYONE pays attention. How powerful is that?

Someone above mentioned that when an advocate makes a stupid argument, judges should ask questions to slam it. Why? Whether the argument gets ripped apart in oral argument or not won't affect the final opinion. The only difference is whether the judge feels superior. Not every judge needs to feel that way. I think Justice Scalia likes being known as the smartest guy in the room -- Justice Thomas is content knowing that his vote on the final outcome is powerful enough.
2.27.2008 10:40am
PLR:
As much as I dislike Thomas, I would much rather prefer his silence to the grandstanding of Scalia at these oral arguments.

Agreed that arrogance is no virtue, but I can't see how dead silence for mutliple years is remotely a virtue either. Coupled with what seems like a singular jurisprudence, it's downright weird and definitely remarkable.
2.27.2008 11:17am
Cato (mail):
I am surprised the headline didn't say:

GRIM MILESTONE: Thomas' Silence Reaches Two Year Mark
2.27.2008 11:18am
Brian G (mail) (www):

Amen, Orin. It's rare that someone actually sticks up for Justice Thomas. At my law school, he is routinely criticized by more liberal students as the least-qualified justice.


You said it. At my law school, they used to call him every name in the book. When Thomas used to get insulted, I would always ask, well, what opinions of his do you have a problem with? If one actually could name a case, I would then ask them what portions of the opinion showed Thomas' lack of intellectual ability, etc. They never had a direct answer, and it always went around to comments like "self-hating black man," "Anita Hill," "did you know he still had student loans when he was put on the court," and my favorite, "Scalia's monkey." (Of course, none of the hyper-race concious liberals at my law school took any offense to that comment. It was Justice Thomas after all).

I read his book. In a just world, he would been one of the most admired men in America. Instead, we get daily hagiographies on people like Barack Obama, a man of nothingness.

Justice Thomas is the most principled justice on the court. Besides, I wish the other justices (especially Breyer, who is an arrogant blue blood whose pronounces some words with the highest of arrogance (i.e. "a-mike-us brief") would emulate him and shut up.
2.27.2008 11:32am
Pluribus (mail):
If Thomas asked a question or two occasionally, it would lend some credence to his claim that he listens to the arguments. (You can, after all, be in the room without listening.) It would also lend some credence to the claim that he is actually capable of framing a question more than once every two years or so. We are repeatedly assured he is a very, very, very intelligent man. I don't dispute that. But must we accept this assurance on faith?

Thomas says his job doesn't require him to ask questions. Does it require him to listen to the lawyers? Or even to show up for oral argument?

I suspect he doesn't answer questions because his mind is made up, and the lawyer hasn't been born yet who can change it. That and the fact that he's got lifetime tenure in his job. But I thought it was the duty of a judge to suspend judgment until the case has been submitted.

If asking questions is just a "game," why do the eight other justices do so regularly? Does Thomas show up because he likes "games," but only as a spectator and not as a participant?
2.27.2008 12:11pm
CJColucci:
I don't think anyone would think it much of a story if Justice Thomas asked far fewer questions than the other Justices. For what it's worth, I think Justices Scalia and Breyer overdo it, but that's just me and I'll shamelessly disavow those sentiments if I ever argue before them. But going two years without asking any questions at all is, to say the least, unusual. I don't subscribe to some of the inferences drawn from his behavior, but it is certainly odd, even if one does not think it blameworthy. In that sense, it's perfectly newsworthy, just as if he had worn a pink bow tie to every sitting.
2.27.2008 12:17pm
Larry Fafarman (mail) (www):
IMO it is newsworthy that a Supreme Court justice has been silent at oral hearings for two years. I knew that Thomas had a reputation for silence but I didn't know the degree of silence. How long should the press wait before reporting on Thomas's total silence? 3,4,5 years? Longer? The press should just report the facts and let people decide for themselves the significance of those facts.

How does Thomas's silence show him to be qualified to be a Supreme Court justice? Any man in the street would have been able to ask a question or make a remark by now.

Justice Thomas has taken the maxim "speech is silver, silence is golden" to an extreme.

IMO a better way for the court to get feedback than holding oral hearings is to issue tentative opinions and then have a public comment period on those opinions before issuing final decisions and opinions. The Supreme Court rules allow petitions for rehearing but there is no opportunity for public comment and I believe that a rehearing has been granted only once.
2.27.2008 12:18pm
OrinKerr:
Larry Fafarman writes:

How does Thomas's silence show him to be qualified to be a Supreme Court justice?

Larry, the job of a Supreme Court Justice is to decide cases and write opinions. Oral argument is not generally thought to be an opportunity for Supreme Court Justices to "prove" themselves.
2.27.2008 12:30pm
tarheel:
50-some posts later I still have yet to see an explanation for how the "lame" AP story implies anything about why Thomas has been silent. The only explanation the story provides are those given by Thomas himself. Not saying the anti-Thomas assumptions aren't out there, but they are not in the story we are purportedly discussing.
2.27.2008 12:52pm
OrinKerr:
Tarheel,

Read my post carefully.

Thanks,
Orin
2.27.2008 1:00pm
LAS:
On a different topic regarding Supreme Court nominees Orin Kerr wrote: "I think it is correct and necessary for a judge to factor this into his decision where the law calls on the judge to do so; the question is whether a judge should factor this into his decision where the law does not call on him to do so."

Maybe because of who he is, he does not want to allow his background to influence a decision "where the law does not call on him to do so." He's done his homework.
2.27.2008 1:04pm
Simon Dodd (mail) (www):
Pluribus:
If Thomas asked a question or two occasionally, it would lend some credence to his claim that he listens to the arguments.
Which he does, when he has questions to ask.

I suspect he doesn't answer questions because his mind is made up ... [b]ut I thought it was the duty of a judge to suspend judgment until the case has been submitted.
I know that the Chief will say "the case is submitted" at the end of argument, but it's hardly as though the argument is the first time the justices encounter the case. By the time it's argued, a justice will ordinarily have read (or at least had the opportunity to read, and in my view should have read) the opinions below, a cert petition and reply, merits briefs by both sides, and anywhere from a trickle to a blizzard of amicus briefs. It doesn't seem outlandish or unseemly that one could develop a view of the case based on this. Indeed, tongue-in-cheek, one might wonder why those who criticize Thomas' silence on the bench are implicitly so dismissive of the ability of our top appellate attorneys to write compelling briefs?
2.27.2008 1:11pm
DJR:
Brian G,

Setting aside your rhetoric, Thomas is justly criticized for his indefensible dissenting opinion in Hamdi. Justice Thomas may wish to live in a country where the President may detain anyone forever, without suspending the writ, by uttering the magic words, "enemy combatant" without even a good faith basis for believing that the individual is an enemy combatant, and that his determination cannot be reviewed by the courts, but I do not. Thankfully, the Court agrees.
2.27.2008 1:13pm
NaG (mail):
Pluribus: "We are repeatedly assured he is a very, very, very intelligent man. I don't dispute that. But must we accept this assurance on faith?"

Why don't you read the opinions, concurrences, and dissents that he has written? Don't you think those are a better mark of his intelligence than if he manages to ask the occasional question during oral argument?

I, too, have noticed how often Justice Thomas' critics are quick to deride his qualifications and mental capacity, but are unable to point out a particular opinion/concurrence/dissent that is poorly written or reasoned. Sen. Reid was a very public example of that. Even when people bemoan Justice Thomas' willingness to overturn opinions he believes are wrong, it's not like those critics truly believe that stare decisis is some ironclad law of the land. Everyone has a few Supreme Court opinions they would opt to overturn.

If Justice Thomas simply voted on cases without much reflection or thought, there would be a case for thinking him unworthy of the post. However, his jurisprudence and ideology are clearly the result of much reflection and thought. Instead of confronting this, people choose to focus on inanities. Personally, I think Justice Thomas has happened on a wonderfully accurate idiot detector.
2.27.2008 1:29pm
tarheel:

What makes these sorts of stories unfortunate, I think, is that they tend to misrepresent the significance of Thomas's silence.

Not surprisingly, this is well couched, but you said "these sorts of stories" -- of which this particular story is presumably one -- "misrepresent." I understand that you are saying that the mere existence of this story leaves readers with the (mistaken) impression that it matters. Fair enough, but the actual content of the story doesn't support your thesis. It is an even-handed, exceedingly fair, story about something of interest to a lot of Court watchers.

I am not trying to push your buttons, Prof. Kerr, but somebody around here has to stick up for the poor ink-stained wretches!
2.27.2008 1:29pm
OrinKerr:
Tarheel,

I think 9 out of 10 readers of the AP story understand the lesson to be that Justice Thomas is not interested in the work of the Court -- that he is not doing his job right. The story doesn't come out and say that, but it doesn't need to given that it also doesn't explain how oral arguments work.

Consider an example. Say I give you a book to read, and I ask you to read the first page. I report to everyone that you stared blankly at the page, and then after a long pause, you looked up at me with a quizzical and confused look. I write up the story, "Tarheel Given Book to Read, Fails to Read It." If I don't explain why you did this, people will just assume that you don't know how to read. Now, I will have never actually said this, but the reader will simply assume the most likely explanation based on their own guesses as to what was happening. I think that's what's happening with the Justice Thomas story, and why the story was given lots of play at NPR.
2.27.2008 1:52pm
tarheel:
Prof. Kerr:

I do see your point. I guess I just thought this version of the much-reported story was actually one of the better ones in that it did not give us some pundit bloviating about their (wrong) explanations and instead allowed Thomas to speak for himself.

In any case, thanks for your response.
2.27.2008 2:10pm
tarheel:

I report to everyone that you stared blankly at the page, and then after a long pause, you looked up at me with a quizzical and confused look.

By the way, you've obviously talked to one of my professors.
2.27.2008 2:15pm
Connecticut Lawyer (mail):
Justice Marshall hardly ever asked questions at oral argument and I don't recall the AP ever running stories about that and even today I don't see in any of the stories about Justice Thomas any mention of the fact that in his reticence he is simply following in Justice Marshall's footsteps. I leave you to draw your own conclusions about these facts.
2.27.2008 2:38pm
pluribus:

I wrote:

If Thomas asked a question or two occasionally, it would lend some credence to his claim that he listens to the arguments.

Simon Dodd answered:

Which he does, when he has questions to ask.

"Listens" when he has questions to ask, or "asks"? I presume the other eight justices only ask questions when they have questions to ask. Why do they (conservative and liberal alike) have so many more questions than Thomas?

I wrote:

I thought it was the duty of a judge to suspend judgment until the case has been submitted.

Simon Dodd responded:

I know that the Chief will say "the case is submitted" at the end of argument, but it's hardly as though the argument is the first time the justices encounter the case. By the time it's argued, a justice will ordinarily have read (or at least had the opportunity to read, and in my view should have read) the opinions below, a cert petition and reply, merits briefs by both sides, and anywhere from a trickle to a blizzard of amicus briefs. It doesn't seem outlandish or unseemly that one could develop a view of the case based on this.

A "view" of the case, fine. I often have a "view" of a case just based on news stories. But a decision is not fine. It is a judge's duty to "judge," not to "prejudge." A judge who decides before everything has been submitted is prejudging. Not fine.
2.27.2008 3:03pm
pluribus:
Connecticut Lawyer:

Justice Marshall hardly ever asked questions at oral argument and I don't recall the AP ever running stories about that and even today I don't see in any of the stories about Justice Thomas any mention of the fact that in his reticence he is simply following in Justice Marshall's footsteps. I leave you to draw your own conclusions about these facts.

Logic check. Your inability to recall that the AP ran stories about Marshall's participation in oral argument does not prove they didn't do so. Lack of recollection doesn't prove a fact.
2.27.2008 3:14pm
RowerinVa (mail):
The media's image of Thomas as detached and non-participating is a fiction. If you haven't already, read the Green Bag's year in review of great legal writing for 2007. In it, you'll find a well-sourced story about Clarence Thomas persuading other justices and greatly affecting the way the Court operates. In particular, he seems to have persuaded Scalia at least as often as the reverse. Warning to Thomas partisans: while Thomas comes off well in terms of substance, the article claims that he made small-p political mistakes that unnecessarily alienated O'Connor and Kennedy, and may have cost crucial votes for his side in several cases.

Where Thomas errs, imho, is that he nsufficiently weighs the fact that the Supreme Court is a public institution for which perception matters, and questioning from the bench is his chance to interact on the job with the public, in a way that helps the voters know him and gain confidence in him. Witness that voters tend to concede Scalia's brilliance even when they hate his philosophy. Is questioning for questioning's sake pandering to the public? I wouldn't call it that. Public officials often need to have public roles. Thomas should do his job the best he can do it, however that looks, but if he can do it to the best of his ability AND have more of a public role, that would be better for his school of legal conservativism.
2.27.2008 3:48pm
CJColucci:
Connecticut Lawyer:


Justice Marshall hardly ever asked questions at oral argument and I don't recall the AP ever running stories about that and even today I don't see in any of the stories about Justice Thomas any mention of the fact that in his reticence he is simply following in Justice Marshall's footsteps. I leave you to draw your own conclusions about these facts.


Logic check. Your inability to recall that the AP ran stories about Marshall's participation in oral argument does not prove they didn't do so. Lack of recollection doesn't prove a fact.


This reminds me of a now deceased NYC reporter, Lars-Erik Nelson, who was on a C-SPAN morning show listening to some caller drone on about how "the media" didn't report on a laundry list of stories. When the caller finished, he asked: "How did you hear about them?"
2.27.2008 3:54pm
Gideon Kanner (mail):
A word from the trenches:

For whatever this may be worth, on the basis of 40+ years of experience as an appellate lawyer, appellate decisions are made on the basis of (a) the judges' result-orientation, (b) the bench memos prepared by the clerks or research attorneys, and (c) the briefs. In that order. In all those years I have had only one case in which the result was unmistakably determined by a question in oral argument and the lawyers' answers. In California, when the appellate courts (iincluding the Supreme Court) take the bench, the Justices have before them a "bench memo," which is a unsigned opinion. It may be edited or changed before filing, but almost never as to results.

Oral arguments are largely ceremonial/theatrical activities that are useful because they provide a visible contact between appellate courts and the consumers of their output. I never waive oral argument, not because I expect it to carry the day, but (1) to pick up on anything useful to my clients the Justices may say, (2) in order to be able to correct a Justice's voiced misperception of the issues or the record, and (3) to keep my opponent honest by my presence.

Bottom line: the reporters and assorted media pundits who babble on about oral arguments tend to mislead the public by creating an unjustified impression as to how appellate cases are decided.
2.27.2008 7:15pm
Steve2:

Remember, this is oral argument, not oral questioning.

-Tony Tutins


I've read transcripts of or listened to numerous arguments where a given judge or justice asks numerous questions of the advocate for one side, but asks no questions at all of the advocate for the other side; in that situation, would you say the justice was only participating in half the argument?


-Simon Dodd


Simon, I'd say in answer to your question: yes, in my mind, the justice only participated in half the argument. In my mind, what Tony pointed out is a design flaw in the court's approach. Oral questioning doesn't even cut it for what I'd think the court would need to do its job well. It'd be more like oral interrogation. Maybe not as rigorous as when a nominee goes through confirmation interrogations in the Senate, but... I fundamentally disagree with Justice Thomas's "you don't need to ask questions to do this job well" outlook. Were I a Justice, my outlook would be "I won't ever be able to ask enough questions to do this job well."
2.27.2008 7:17pm
pluribus:
Gideon Kanner:

I never waive oral argument, not because I expect it to carry the day, but (1) to pick up on anything useful to my clients the Justices may say, (2) in order to be able to correct a Justice's voiced misperception of the issues or the record, and (3) to keep my opponent honest by my presence.

If a particular justice is silent, (1) and (2) above would seem to be impossible as to that justice. You cannot pick up on anything useful to your clients from that justice and you cannot correct any misperception of the issues or the record that justice may have.

It may be reasonable to assume that a justice would not have anything useful to say for two years, but is it reasonable to assume that the justice would not have any misperception of the issues or the record in that time? These justices arfe fallible human beings, not supermen or superwomen.
2.27.2008 7:39pm
Connecticut Lawyer (mail):
Pluribus,

Let me clarify. I clerked OT 81 and I don't ever recall Justice Marshall asking any questions. I didn't go to all the arguments, but I made it to all the big ones. Maybe he was more active when he was younger, I don't know. But when I saw him he was content to listen to oral argument and discuss the cases with his clerks.
2.27.2008 11:22pm
Gideon Kanner (mail):
Pluribus:

Please read what I said. It was "(2) to pick up on anything useful to my clients that the Justices may say."

Note that Justioces is plural (which means that some may speak while others may not), and the operative word is "may," which implies that they may not say anything useful to my clients or to anybody. Occupants of the bench are not immune to the vice of wanting to hear themselves talk. And as others have observed here, some of them use "questions" to take shots at each other's positions. It's all a part of the game.
2.28.2008 4:44am
pluribus:
Gideon Kanner:

Please read what I said:

If a particular justice is silent, (1) and (2) above would seem to be impossible as to that justice. You cannot pick up on anything useful to your clients from that justice and you cannot correct any misperception of the issues or the record that justice may have.


Note that "justice" is singular.


PS. The discussions here are dialogues, not monologues (as good appellate arguments should be.)
2.28.2008 8:13am
Gideon Kanner (mail):
Pluribus;

Evidently you and I move in different judicial circls. Appellate courts in my world have multiple Justices: three, seven or nine. So if one of them is quiet during oral argument, that leaves the others, and what I said applies because the benefits that I derive from the total experience of oral argument are there even if one of them is silent. Often you get clues from the silent Justice's body language, reaction to certian specific arguments, reaction to questions asked by the other justices etc.

Bottom line: these people are entitled to their style of handling the cerempony that oral argument often is, and the proof of the pudding is in the opinions they sign (which BTW may have been prepared by their research attorneys) As the Romans used to say, sic friature crustum dulce.
2.28.2008 11:23am
pluribus:
Gideon Kanner:

I don't dispute what you say. I did think you were rather condescending when you told me to read what you said, when of course I had already read what you said and merely commented on it (without disputing a point of it). Different legal circles? Maybe. I thought courtesy applied in all crcles.

Question: If oral argument is a "game," do you have any compuntions about billing your clients for it? Do you inform them in advance that it is a "game" but you will charge them for it anyway?
2.28.2008 11:35am