This past Monday’s business was briefly interrupted by the specter of BREAKING NEWS on the office television, featuring a photograph of Justice Clarence Thomas. For a fearful moment I wondered what the BREAKING NEWS might be – and was quickly reassured when I saw, from the crawl at the bottom of the screen, that Thomas had spoken from the bench for the first time in ten years.
This was, by any measure, the sort of man-bites-dog story for which the 24-hour news cycle was invented. It is true that Justice Thomas – in contrast to his colleagues – almost never asks questions of counsel from the Supreme Court bench during oral arguments. It is equally true that his colleagues tend to engage the lawyers and, depending on their rhetorical styles, may be argumentative, or pedantic, or like the late Justice Antonin Scalia, gifted at repartee. The fact that Clarence Thomas resolutely keeps his own counsel during arguments has no bearing – none whatsoever – either on his own work or on the work of the court. But his silence drives politico-journalistic Washington crazy, and prompts such incidents as Monday’s BREAKING NEWS item on cable news channels.
It should be mentioned, of course, that Thomas has given a perfectly valid and reasonable explanation for his reticence: He has read the briefs for each case, has pondered the facts and the law and the Constitution, and like all eight of his colleagues, has made up his mind by the time the cases are “argued” before the court. The substance of any extended debate about pending cases is discussed among the justices and their clerks, and the outcome of every case is determined long before the two sides present their arguments to the court. Oral arguments, in other words, are judicial/political theater: Entertaining theater, to be sure, and useful to journalists and professional court-watchers; but meaningless, in practical terms.
The problem – if it is a problem – for Justice Thomas is that the vacuum tube of his silence is quickly filled with political gas. Partisans who don’t like him are free to interpret it as they see fit, and ascribe all sorts of pejorative reasons – arrogance, stupidity, presumption, boredom – that reflect their own bias. One agitated left-wing website noted that the case which broke Thomas’s silence this week had to do with access to arms, thereby confirming his status as a right-wing gun enthusiast. And a Washington television station, reporting on the BREAKING NEWS, explained that Thomas “has come under criticism for his silence from some who say he is neglecting his duties as a justice.”
This latter point might make sense if the duties of a Supreme Court justice included asking questions of lawyers during oral arguments. But they do not – and in truth, extended discussion during court sessions is a comparatively recent phenomenon. Any number of distinguished justices in the court’s long history – from John Marshall to Oliver Wendell Holmes, and beyond – were nearly as reticent as Clarence Thomas during oral arguments, reserving their passionate advocacy and pointed language (again, like Thomas) for their written opinions. Indeed, Holmes (again, like Thomas) scrupulously avoided reading newspapers in order to maintain judicial neutrality.
Which leads to a paradox: You would think that a prominent public official who avoids extraneous talk, and reserves his energies for the relevant tasks at hand, would inspire admiration, even wonder, in the nation’s capital. BREAKING NEWS, indeed! But the opposite is largely true when it comes to Clarence Thomas, who “some … say … is neglecting his duties as a justice” by working diligently and maintaining a dignified silence.
