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.