One of the most absurd arguments used often to criticize Clarence Thomas is that he very rarely asks a question during oral argument, unlike his more loquacious colleagues. Jeffrey Toobin goes further than most, calling Thomas’ silence “disgraceful” and “embarrassing.”
Still, there is more to the job of Supreme Court Justice than writing opinions. The Court’s arguments are not televised (though they should be), but they are public. They are, in fact, the public’s only windows onto the Justices’ thought processes, and they offer the litigants and their lawyers their only chance to look these arbiters in the eye and make their case. There’s a reason the phrase “your day in court” resonates. It is an indispensable part of the legal system.
But the process works only if the Justices engage. The current Supreme Court is almost too ready to do so, and sometimes lawyers have a hard time getting a word in edgewise. In question-and-answer sessions at law schools, Thomas has said that his colleagues talk too much, that he wants to let the lawyers say their piece, and that the briefs tell him all he needs to know. But this—as his colleagues’ ability to provoke revealing exchanges demonstrates—is nonsense. Thomas is simply not doing his job.
By refusing to acknowledge the advocates or his fellow-Justices, Thomas treats them all with disrespect. It would be one thing if Thomas’s petulance reflected badly only on himself, which it did for the first few years of his ludicrous behavior. But at this point, eight years on, Thomas is demeaning the Court. Imagine, for a moment, if all nine Justices behaved as Thomas does on the bench. The public would rightly, and immediately, lose all faith in the Supreme Court. Instead, the public has lost, and should lose, any confidence it might have in Clarence Thomas.
Oh stop it. Just stop it. Yes, let’s imagine if all nine justices behaved as Thomas does on the bench. The attorneys, who only get 30 minutes, might actually get to present their case without interruption. As it is, they often don’t get the first sentence out before someone, usually Scalia, is badgering them like a high school debater during cross-examination. Thomas is right about this. By the time oral argument is heard, the justices have already read the entire trial record, the appeals court record, every brief filed in the case (sometimes dozens of them) by both parties and amici. They already know how they’re going to vote and nothing said at oral argument is likely to change that.
This is very much like what Republicans do with President Obama. There are so many very good reasons to criticize Clarence Thomas but far too many liberals ignore the actual substantive issues for these shallow, irrelevant arguments. They repeat tired old cliches about him being “Scalia’s lapdog” when the reality is quite the opposite (Thomas has influenced Scalia considerably and pulled him further to the right throughout his time on the bench). Thomas is the most reactionary justice on the court by a mile, probably the most reactionary justice we’ve had on the court in the last century. Criticize that. It actually matters.