Much has been made, particularly on the left, about Justice Clarence Thomas not asking questions during oral argument before the Supreme Court. Though I am a staunch critic of most of Thomas’ views on constitutional law, I think criticism of his silence is absurd. Here he defends that silence:
“I don’t see where that advances anything,” he said of the questions. “Maybe it’s the Southerner in me. Maybe it’s the introvert in me, I don’t know. I think that when somebody’s talking, somebody ought to listen.” …
He said the lawyers presenting their cases are capable and don’t need guidance from the justices: “I don’t need to hold your hand, help you cross the street to argue a case. I don’t need to badger you.”
Thomas was asked specifically about the plethora of questions during three days of oral arguments as the justices decide whether to kill or keep President Barack Obama’s health care overhaul. But Thomas said it’s become habit for justices to interrupt lawyers.
“We have a lifetime to go back in chambers and to argue with each other,” he said. “They have 30, 40 minutes per side for cases that are important to them and to the country. They should argue. That’s a part of the process.
“I don’t like to badger people. These are not children. The court traditionally did not do that. I have been there 20 years. I see no need for all of that. Most of that is in the briefs, and there are a few questions around the edges.”
I think he’s right. Much of the questioning that goes on is little more than grandstanding by the other justice, especially Scalia and Breyer. The attorneys get only 30 minutes to present their case. Let them speak. By the time oral argument is heard, the justices have already read the entire trial court record (in a criminal case), the district court record, the appeals court record and often dozens and dozens of briefs written by the opposing sides and by innumerable amicus groups. I cannot think of a single case where a justice asked a question that was not addressed in those briefs or in the lower court records.
There is a great deal of valid criticism of Justice Thomas, who is by far the most radical member of the court. I’ve made a lot of it over the years. But this criticism is utter nonsense.