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Thomas the silent

There is no requirement that justices speak at oral argument.

February 23, 2011

Justice, they say, is blind, but may it also be dumb? Critics of Supreme Court Justice Clarence Thomas don't think so. They fault the court's most conservative member for not asking a single question of lawyers over the last five years. His silence, they argue, bespeaks a lack of engagement with the cases he helps decide. It also allegedly deprives lawyers of a window into his thinking.

We don't agree.

There is no requirement that justices speak at oral argument. In the past, it was much less common for justices to pepper lawyers with questions, let alone spar with their colleagues, the way they do today. Some court watchers trace the explosion in questioning to the arrival in 1986 of the supremely loquacious Justice Antonin Scalia, who often votes with Thomas.

As for the argument that lawyers need to know a justice's thinking about a case, Thomas' approach to the Constitution is well known. He is a serious legal thinker with a distinctive jurisprudence. For example, Thomas has questioned whether the 1st Amendment's ban on an establishment of religion should apply to the states, and whether the commerce clause of the Constitution has been interpreted too broadly. (He also may be the only sure vote against the constitutionality of President Obama's healthcare plan.)

Those are radical positions, but honestly held and eloquently defended. No lawyer who reads Thomas' opinions will be under any illusion about his judicial philosophy. Whether one agrees with those opinions is, of course, another matter.

Thomas has offered several reasons for his silence: He wants to give the advocates time to make their case; he can rely on his colleagues to ask questions on his behalf; he is distressed by the bickering masked as questions for the lawyers. But it doesn't matter whether any or all of these explanations is valid. Thomas doesn't have to justify his silence.

Some of the complaints about Thomas' silence originate with those who dislike his approach to the law or his extracurricular activities, such as his attendance at a retreat sponsored by a contributor to conservative causes. We are critical of Thomas on both counts. But it's unfair to extrapolate from such criticisms to the claim that Thomas is a laggard on the bench.

The next time — if there is a next time — that Thomas speaks during an oral argument, reporters will understandably treat it as a major event. ("Thomas talks!") But a media sensation isn't the same thing as a legal milestone. Meanwhile, observers who want to hear the justice's voice should read his opinions.

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