When the Supreme Court returns from its winter break this month, it will hear two minor cases and reach a major anniversary. Unless something very surprising happens during the arguments that day, Justice Clarence Thomas will have gone 10 years without asking a question from the bench.Something you won't hear me say often: I see his point. He's not the only one to hold the position, either. Justice William O. Douglas held the same viewpoint, believing they the time belonged to the lawyers, and not to justices who wanted to lobby their colleagues.
Maintaining a decade-long vow of silence takes monkish dedication and a certain stamina, and Justice Thomas has no modern competition. It has been at least 45 years since any other member of the court went even a single term without asking a question.
Justice Thomas’s explanations for his disengagement from this aspect of the court’s work have varied, but he seems to have settled on one in recent years. It is simply discourteous, he says, to pepper lawyers with questions.
“I think it’s unnecessary in deciding cases to ask that many questions, and I don’t think it’s helpful,” he said at Harvard Law School in 2013. “I think we should listen to lawyers who are arguing their cases, and I think we should allow the advocates to advocate.”
His is an unusual conception of the role oral arguments play at the Supreme Court. The justices know the lawyers’ arguments well by the time they take the bench, having read stacks of briefs, most of them very thorough.
Oral arguments are a chance for justices to probe the contentions in the briefs and for lawyers to address the issues that most trouble the justices.
“If oral argument provides nothing more than a summary of the brief in monologue, it is of very little value to the court,” Chief Justice William H. Rehnquist wrote in 1987.
Justice Thomas acknowledged at least the premise of this point in his remarks at Harvard. “Most of the work is done in the briefs,” he said.
But he may well be right that his colleagues go too far in the other direction, interrupting one another and spraying lawyers with questions that seldom get full and considered answers.
“We look like ‘Family Feud,’ ” Justice Thomas told a bar group in 2000.
Asked about the free-for-all state of arguments at Harvard in 2013, he said, “I don’t like it that way, but I’m nobody’s boss.”
Douglas, like Thomas, also had concerns about the seemliness of the way it was done. Having seen some arguments, listened to more, and read the transcripts of still more, I think Justice Thomas is right--there's a tendency on the current Court to showboat, to treat the argument as a sporting event. When I saw it in a death penalty case, at the very beginning of my career, I was appalled at the cavalier attitude several justices betrayed in oral argument toward performing what should be the most solemn aspect of their duties, regardless of one's opinion on the merits of the death penalty.
This isn't to say that no levity, no spark, is appropriate. But an argument in the Nation's highest Court should, perhaps, not be quite so easily confused with a bear-baiting, with counsel as the bear.