When Clarence Thomas (literally) has nothing to say

May 19, 2007

Sure, I realize that some Supreme Court justices are going to be less curious than others, and some prefer delving into briefs to quizzing counsel, but Clarence Thomas’ reticence is unnerving.

Justice Clarence Thomas sat through 68 hours of oral arguments in the Supreme Court’s current term without uttering a word.

In nearly 16 years on the court, Thomas typically has asked questions a couple of times a term.

But the last time Thomas asked a question in court was Feb. 22, 2006, in a death penalty case out of South Carolina. A unanimous court eventually broadened the ability of death-penalty defendants to blame someone else for the crime.

Since October 2004, when high court transcripts began identifying justices by name, Thomas has said 281 words total. Justice Stephen Breyer, who sits next to Thomas, has uttered nearly 35,000 words since January.

My guess is he speaks far more often behind the scenes. After all, he and Scalia have to chat about how best to vote together on all the major cases, right?

Actually, Justice Clarence Thomas is quite active behind the scenes. In fact, according to a new book by Jan Crawford Greenberg Supreme Conflict, Justice Sandra Day O’Connor was actually pushed more to the ideological center by Thomas’s sharply conservative politicking in the court. She paints a picture of someone who is very independent in his thinking, and even more consistently conservative than Scalia himself.

  • Thomas isn’t doing his job. It’s that simple. He contributes nothing of substance to the Court. It’s an unusual situation.

  • Talk about tenure without accountability.

    Can you imagine being in a job for the rest of your life with people who had their jobs for the rest of their lives?

  • Better to remain silent and be thought a fool, than to speak and remove all doubt.

  • Reminds me of the quip I heard during the Thomas confirmation debacle, a result that would have made conservatives equally happy, “Why don’t we give Scalia two votes?”

  • As more and more blatant lawless abuses by the justice department emerge, I wonder if any of the Bush appointed Supreme Court Justices have the decency to be embarrassed to be associated with such corruption and move towards the center? .. or is shamelessness the basic requirement for all Bush appointees?

  • George Bush in black robes – woo hoo. Damn – unlike the pResident he has a lifetime appointment.

  • He also sleeps on the bench. No, not just sitting there with his eyes closed looking restive… but asleep… body jerking slightly and all…. I witnessed it first hand as I argued a case in front of the court and I was ready to be mad as hell if he voted against me in the case I was arguing…. fortunately I had scalia’s vote and Thomas’s vote (of course) came with it…
    There have been some articles periodically about Thomas “looking” like he is asleep… I guess they were afraid to say that they were certain…
    (sorry if I posted this twice…)

  • Why ask questions if you know all the answers, having got them directly from God?

  • “My guess is he speaks far more often behind the scenes. After all, he and Scalia have to chat about how best to vote together on all the major cases, right?”

    Not necessarily.
    SCALIA: “Vote no on this one.”
    THOMAS: ” “

  • Thomas reportedly does not like his job but will stay on – out of spite – until he is forced to retire. And when he does retire, history will not be kind. Dittos don’t even rate footnotes.

  • I’m of libra’s mind. Thomas doesn’t need to ask questions if his magic 8-ball of ideology always gives him the easy answer. If the case involves a Repub against a Democrat — vote for the Republican. If it’s a citizen vs. a corporation — vote for the corporation. If’s a conservative vs. anything — take the conservative’s side.

    Being a Supreme Court justice is easy, if you have the handy right wing voting guide.

  • I found this via TPM, aghast at the stale, lazy softballs being thrown by their guest blogger (or I guess “cc” blogger, since the entries are right here too).

    McClatchy’s riffing off Supreme Discomfort, published at least a month ago. Pretty much every nationally syndicated and regional market NPR talk show interviewed Merida and Fletcher about it back then too. Thomas’s reticence came up, as did his lack of opinion writing assignments. Thomas’s claimed defense for reticence, that he find the interjection style of the Supremes bothersome, is only half convincing, that fact that his ideological commitments keeps his pen away from all but the most innocuous decisions is even more troubleing.

    Still, I don’t know, there’s some sort of a parallel pot calling kettle here. Thomas has only said 281 in a session, and a “good justice” speaks over 35,000. Carpetbagger writes up a blog entry after reading 281 “incite”ful words, while around 35,000 words have provided a deeper articulation of the matter for over a month…. I thought the blogosphere was supposed to be better than MSM.

  • Thomas regularly votes against Scalia. He’s got a particularly influential philosophy of law among academics, but judges on the bench tend not to go as far as he does, including the entire rest of the Supreme Court. He often votes by himself. Sometimes he talks Scalia into joining him. He certainly doesn’t just vote however Scalia votes. He’s much more principled in his originalism than Scalia is, so that would be anathema to him. It would mean violating his deepest principles to vote with Scalia when Scalia relies too much on precedent and not enough on principle.

    Thomas’ own reason why he doesn’t talk much in oral argument is because he has the view that was presented to me by a judge when I was on jury duty. It’s the job of the prosecuting and defending attorneys to present their case. The prosecutor in particular has to make a case, and the defense attorney has to respond to those charges. If they raise issues, then the court can consider them. If they don’t, it’s not the job of the judges to bring those issues up. It’s the job of the lawyers. He doesn’t think he should be doing their job. It’s a principled reason.

    When he does talk, I would imagine that it’s often not to bring in arguments they don’t bring in. It’s to clarify what exactly they mean or to get their response to an argument that’s already been mentioned that he hasn’t heard a response to.

    As for justices moving to the center just because they guy who appointed them has trouble in his Justice Department, that’s nuts. Why should a judge sacrifice principles just because the person who happens to be president has investigations going on? It’s not as if the justices are supposed to be beholden to the president in any way. That truly would be corruption. They should decide cases the way they think the law and the Constitution require it, not for the kind of petty political reasons you’re suggesting. That would be grounds for impeachment.

    • Comments are closed.