Who Cares About Clarence Thomas's Silence?

8 years ago this month, the Supreme Court heard oral arguments in a case called Holmes v. South Carolina. Justice Clarence Thomas began to question one of the litigators—"Counsel, before you change subjects..."—and pursued his line of inquiry with a lengthy follow-up. This otherwise ordinary event is now famous, because it represents the last time Justice Thomas has asked a question at oral argument. To many liberals already disinclined to take a charitable view towards a reactionary jurist, this is a major dereliction of duty at best. The latest to make this argument is Jeffrey Toobin, the invaluable legal analyst at the New Yorker. Thomas's behavior, claims Toobin, "has gone from curious to bizarre to downright embarrassing," and "[b]y refusing to acknowledge the advocates or his fellow-Justices, Thomas treats them all with disrespect." Toobin's argument is more narrowly focused and plausible than many similar critique's of Thomas's ongoing silence. But I remain unconvinced that there's anything really problematic about Thomas's refusal to ask questions at oral argument.

Toobin has a clear and superficially persuasive argument: oral arguments are a major part of what judges do, and Thomas "is simply not doing his job." If Thomas were a district court judge or perhaps even on an circuit court where arguments usually take place in front of a 3-judge panel, this argument would carry substantial weight. But while Thomas's silence is certainly unusual, at the Supreme Court level, I'm much less convinced that it matters. Any Supreme Court appeal will have the relevant legal arguments covered comprehensively in briefs submitted by well-compensated experts. Moreover, as Toobin at least half-acknowledges, actually existing oral arguments often do very little to illuminate legal issues for the public. Stephen Breyer's interminable law professor hypotheticals and Antonin Scalia's channeling of Glenn Beck are about drawing attention to themselves rather than helping the Court work through issues. As Adam Liptak of the New York Times observes, no competent advocate facing the Court or informed observer of the Court could have any serious doubt about the content of Thomas's jurisprudence after the more than two decades he's spent issuing opinions, by far the most important way in which a Supreme Court justice communicates.

I do agree with Toobin that there's something petulant and spiteful about Thomas's refusal to ever ask a question, and all things being equal a little more engagement would be preferable. But it's a minor manner. And Thomas's silence, frankly, represents a more clear-eyed take on the value of most oral arguments at the Supreme Court than Scalia's grandstanding.

The big problem I have with this argument—a move which Toobin, to his credit, avoids—is that it tends to lead to a distorted and unfair caricature of Thomas. Anyone who's spent time in liberal spaces online will have seen numerous examples of Thomas's silence at oral arguments being used to portray him as unqualified, and in some cases a mere puppet or lackey of Antonin Scalia. As Toobin says, this is deeply mistaken: "[F]or better or worse, Thomas has made important contributions to the jurisprudence of the Supreme Court." His silence at oral argument shouldn't be confused with a lack of substance; he has developed a distinctive and substantial body of work that liberals need to reckon with. From his early days on the Court, he's had a substantial influence on the Court's conservative wing and hence the country. Among many other potential examples, from the privileges and immunities clause of the 14th Amendment to federalism to antitrust law to the rights of students to executive power in wartime, Thomas has staked out positions very different than those of even his Republican-appointed colleagues. In some of these cases I find his position more attractive and in others I find it even worse, but the crucial point in this context is that they're different, and in many cases very interesting.

In addition to his lack of participation at oral argument, Thomas's contributions have been underrated because he lacks the stylistic flash of Antonin Scalia, a justice far more likely to earn the grudging respect of liberals. But while Scalia is capable of very smart work (albeit usually in the service of bad causes), not infrequently his quotable phrases mask arguments that are clearly rife with logical and historical errors. As with his relative reticence at oral argument, the unflashy prose of Thomas's opinions is in some respects a point in his favor—wanting to get quoted in newspaper accounts doesn't always work to the benefit of a justices's opinions. Thomas would surely detect a degree of racist condescension in Scalia's much higher public reputation—and I don't think this is entirely unjustified.

There are, of course, many reasons that progressives should find Clarence Thomas's jurisprudence objectionable. His radical views of federal power would seriously undermine the New Deal/Great Society programs cherished by most Americans, and his receptiveness to the "rights" of states is matched by a consistent indifference (or worse) to vulnerable Americans potentially subject to arbitrary actions by state officials. And while he's not a straight Republican party-liner like Samuel Alito he's not the judge of high principle he holds himself out as, either. But this is where criticism of Thomas should focus—on the merits. His jurisprudential vision is unattractive in many respects, but he's far from unqualified or incompetent, and his silence at oral arguments is an interesting trivia question but really nothing more than that.

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