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.
31 comments
Skip to comment form ↓
slc1
April 11, 2012 at 9:29 am (UTC -4) Link to this comment
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.
All well and good but let’s carry this argument to its logical conclusion. What is the purpose of having oral arguments at all if everything is in the briefs and the written record?
plutosdad
April 11, 2012 at 9:32 am (UTC -4) Link to this comment
I believe he is always pretty quiet, isn’t he? I seem to remember this coming up before.
Raging Bee
April 11, 2012 at 9:34 am (UTC -4) Link to this comment
Actually, the most absurd thing here is Thomas’ defense of his 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.”
There’s so much wrong in this small paragraph I’m actually kind of impressed. He really thinks asking questions doesn’t help anything? He really thinks asking questions means you’re not listening? And referring to “the Southerner in me” reinforces the stereotype of Southerners as people who are taught never to question authority.
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.
So why do we have pral arguments at all? So the judges can ask questions about what they’ve read, if they feel it necessary.
There are, of course, good reasons not to ask questions if you already know the answer or don’t think it relevant; but this stated reason for not asking questions is just plain stupid.
Also, when you combine Thomas’ silence with the radicalism for which you’ve criticized him, that kind of adds up to a picture of an ideologue who may not really give a shit about the facts or legal arguments; and who doesn’t ask questions because his mind is already closed.
d cwilson
April 11, 2012 at 9:43 am (UTC -4) Link to this comment
I have to agree with slc1 and Raging Bee here. If it’s all in the written briefs, what’s the point in having oral arguements? Even if justices like Scalia and Breyer do grandstand, that doesn’t mean that some of the others might want to ask the attorneys to clarify a particular point.
I don’t buy Thomas’ excuse for his silence. I think the real reason he doesn’t ask questions is because his mind is made up the moment the check clears his wife’s account.
harold
April 11, 2012 at 9:57 am (UTC -4) Link to this comment
I hate to agree with the guy who wants to subject innocent women and children to unjustified nuclear holocaust, but this criticism of Thomas is highly valid, both in the context of this case and in general.
Engaged questioning is a sign of making an effort to follow a train of argument and apply critical, skeptical reasoning. (The fact that Scalia uses ostentatious, disruptive, show-boating questioning does not change this. Bad questioning does not negate the importance of good questioning.)
I’m not a lawyer, but I can assure you that when I have given a live presentation in a scientific or business context, stony silence is not what I wanted to receive as a response. It isn’t a sign of respect. It’s a sign that the audience was either totally lost, didn’t care, or had some kind of over-riding pre-existing bias and listened only because they were formally required to, but could not have been swayed by any argument that might be made.
The routine lack of such questioning from Thomas suggests exactly those things. He makes up his mind based on pre-existing rigid ideology, doesn’t give a damn about the arguments, and isn’t even concerned with whether he fully understands them, because that doesn’t matter when you know how you are going to vote, regardless of the arguments.
Only if by “southerner” he means “right wing ideologue whose mind is already made up”. Does anybody think that if southerner Bill Clinton were a justice, he’d sit there in stony silence?
Here he confounds his personal style in social interactions with his professional role, and by doing so, insults thousands or millions of introverts who engage in competent professional self-expression.
Here he engages in Fox/Limbaugh/Tea Part era Orwellian “opposite” rhetoric. The fact that he doesn’t ever ask a single engaged question is a problem precisely because it suggests that he isn’t listening.
gshelley
April 11, 2012 at 9:59 am (UTC -4) Link to this comment
For the most part, the questions do little other than give a judge the chance to make an argument look silly, and to show where they stand on the issue. Questions about broccoli, funeral insurance or cell phones are nothing more than political grandstanding and are not of any actual use.
It’s not even as though the judges then go back and write their opinions in isolation. There is plenty of back and forth discussion while the decision is being made, and any genuine questions they have will be answered in that time.
Occasionally, there may be something to be gained from a question, just as occasionally, there may be something in the oral presentation that is not in the written submissions, but for the most part, they are both for show.
dingojack
April 11, 2012 at 10:00 am (UTC -4) Link to this comment
From my many hours of watching American TV police procedurals, isn’t there right to silence? *
;) Dingo
—–
* Miranda vs Arizona, I believe
slc1
April 11, 2012 at 10:09 am (UTC -4) Link to this comment
Re gshelley @ #6
A show to whom? These proceedings are not televised. Showboating is what one observed during the televised OJ Simpson trial.
subbie
April 11, 2012 at 10:14 am (UTC -4) Link to this comment
I am a lawyer. (Well, I was. I’m in recovery now.) I’ve done appellate work. harold @5 is absolutely right. I welcome questions from the judges, it lets me know what problems they have and it gives me a chance to address them and try to solve them. I have, on occasion, changed a judge’s mind based on my answer to a question, so it can be helpful. Of course, this presupposes that the questions aren’t just grandstanding.
d cwilson
April 11, 2012 at 10:21 am (UTC -4) Link to this comment
Again, I don’t see this as a valid arguement against asking any questions. Just because some justices grandstand, doesn’t mean that questioning could be a useful tool for judges to gain insight and clarification.
Also, I don’t know if grandstanding is “for the most part”, the kind of questions that are asked. Silly questions like the broccoli one may become the lead in reports about the court because they are sensationalistic. That doesn’t mean that these are the most common kinds of questions asked.
harold
April 11, 2012 at 10:31 am (UTC -4) Link to this comment
I said –
subbie said –
However, gshelley said –
I guess this is kind of a subtle point but…either self-serving bullshit questions that are not really related to the arguments, or uninterested silence, is a sign of disrespect and lack of interest, due to pre-existing ideological bias that guarantees a particular vote.
But engaged questions show attention and interest, and allow clarification and expansion.
Bad questioning is not an argument for stony silence. The opposite of bad questioning is valid, relevant questioning.
Raging Bee
April 11, 2012 at 11:17 am (UTC -4) Link to this comment
harold: good point about introverts. “Introverted” is not the same as “unwilling to engage in inquiry.”
Is Thomas actually implying he’s too shy or inhibited to ask a question he would otherwise consider worth asking? Because being introverted has NOTHING AT ALL to do with whether or not it makes sense to ask this or that particular question.
slc1
April 11, 2012 at 11:25 am (UTC -4) Link to this comment
Re Raging Bee @ #12
Uncle Tom Thomas was not at all shy about talking to Anita Hill about his favorite actor, long John Silver.
Ed Brayton
April 11, 2012 at 11:42 am (UTC -4) Link to this comment
slc1 wrote:
I’d actually be fine with eliminating the oral argument, as would a lot of others. It would have almost no effect at all on the outcome of any case (I say almost because there is a hypothetical chance that one of the justices would have their mind changed by how a question is answered, but it’s probably very unlikely because the oral argument happens so late in the game). They only give them a half hour for a reason, I think. It’s nothing more than a formality at this point, a tradition that is catnip to con law geeks like me (I still like listening to the arguments, I just don’t think they serve much of a purpose other than my own entertainment).
baal
April 11, 2012 at 11:50 am (UTC -4) Link to this comment
I agree with d cwilson and would like to add that I suspect Thomas is a fool and he knows enough to not say anything so it’s not confirmed. I’ve been seriously underwhelmed by him the rare times he’s spoken at public forums. I find Scalia a vile person but I don’t doubt his ability to understand and make valid points (although the broccoli reich-wing talking point coming from a sitting SCOTUS member was shocking).
democommie
April 11, 2012 at 12:03 pm (UTC -4) Link to this comment
“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 sorta doubt that the justices have done all that reading, that’s why they have clerks. I worked in Verizon NE States Regulatory in Boston for about 5-1/2 years and witnessed on a daily basis what it’s like to kill trees in order to muddify what should have been abundantly clear. We sent out documents that weighed as much as 90 lbs. per copy (most of them were much smaller, but still doorstop material). I doubt that anyone read any of them in their entirety.
Ideologues like Thomas don’t NEED or desire to read voluminous documents that don’t further THEIR ideology.
Michael Heath
April 11, 2012 at 12:46 pm (UTC -4) Link to this comment
I think the current process is horribly defective, embarrassingly so.
I’d like to see a process where briefs are filed, the justices ask questions, and then the advocates respond with a written response and several days later, orally. My position noted here is not locked in stone, in fact I’m hardly wedded to it at all. It’s merely illustrative in order to point out the almost total lack dialogue which allows the justices to utilize false premises in their written opinions.
The courts could use a heavy dose of process optimization training.
So do I have a problem with J. Thomas not asking questions? I do, not because he should, but because I perceive him not giving a flying fuck what the arguments are, he’s going to rule based on what best serves his personal agenda. I perceive him acting out like this much more so than any other justice I’ve followed though I think J. Alito’s grievances also increasingly drive the same behavior out of him.
Michael Heath
April 11, 2012 at 12:48 pm (UTC -4) Link to this comment
Left out a key descriptor above; emphasized word is added to clarify:
mauriletremblay
April 11, 2012 at 1:44 pm (UTC -4) Link to this comment
d cwilson wrote:
Scalia tends to be rather vocal during oral arguments. Is that because his mind is not made up ahead of time? Or are you just being silly?
d cwilson
April 11, 2012 at 2:30 pm (UTC -4) Link to this comment
How about c) What I said about Thomas only applies to Thomas had nothing at all to do with Scalia’s opinions or his personal style.
As others have mentioned, Scalia is a grandstander who loves the sound of his own voice. He asks questions not to gain clarification, but to let everyone else know that he is (in his mind) the smartest person inthe courtroom.
harold
April 11, 2012 at 2:30 pm (UTC -4) Link to this comment
mauriletremblay –
You’re the one who’s being silly.
Although some good arguments are made above for a case presentation format that doesn’t include oral arguments in the particular way we have now, we currently have the system we have.
Thomas expresses that fact that he will vote his ideology, precedent and constitution be damned, by disdainfully barely paying attention to the arguments, and remaining silent.
Scalia expresses the same thing by harassing whichever side he is predisposed against with illogical, irrelevant questions.
What neither does is to use questions that are relevant and help to clarify the argument being made.
Walton
April 11, 2012 at 2:35 pm (UTC -4) Link to this comment
You’re not kidding…
Some Thomas highlights: In his dissent in Morse v. Frederick, he expressed his view that children in public schools have no free speech rights against the school, and that the famous First Amendment case of Tinker v. Des Moines (regarding the right of schoolchildren to protest the Vietnam War) was wrongly decided. He’s also maintained – e.g. in his brief dissent in Lawrence v. Texas – that there is no general constitutional right to privacy. And he joined Scalia’s horrific dissent in Roper v. Simmons, in which Scalia didn’t think that executing people who were minors at the time of the commission of the crime constituted cruel and unusual punishment.
Thomas has also repeatedly said that, in his view, the Establishment Clause of the First Amendment is not incorporated in the Fourteenth Amendment and therefore doesn’t apply to the states. See his concurrences in Elk Grove Unified School District v. Newdow and in Van Orden v. Perry, for instance. So – if I’m understanding him correctly – he doesn’t think, in principle, that anything in the Bill of Rights precludes a state or local government from establishing a religion.
Raging Bee
April 11, 2012 at 3:29 pm (UTC -4) Link to this comment
I do not agree with the idea of abolishing oral arguments. At the very least, there has to be an opportunity for the judges to confront the appellants with questions as they see fit. We also have a tradition of enabling disputing parties to confront and face each other more or less directly; and IMO doing away with oral arguments significantly diminishes the opportunity for such face-to-face debate. And it might set a precedent: if the Supreme Court no longer allows oral arguments, that could make it easier to shut down such arguments in lower courts as well — where would that trend stop? When defendants no longer have the opportunity to confront their accusers?
Chiroptera
April 11, 2012 at 3:47 pm (UTC -4) Link to this comment
mauriletremblay, #19: d cwilson wrote:
Scalia tends to be rather vocal during oral arguments. Is that because his mind is not made up ahead of time? Or are you just being silly?
Look up the Fallacy of the Inverse.
If you’re surprised by what you read, then think back and figure out how many other arguments that you made in the past were also invalid.
stace
April 11, 2012 at 4:35 pm (UTC -4) Link to this comment
Pretty sure he was referring to Long Dong Silver, actually.
woodytanaka
April 11, 2012 at 4:47 pm (UTC -4) Link to this comment
“if the Supreme Court no longer allows oral arguments, that could make it easier to shut down such arguments in lower courts as well”
A lot of lower courts don’t permit argument at this point, anyway. In a number of them that I am aware of, the Court will not permit argument — even if the parties want it — unless the Court itself wants the argument.
Ed is right. They’re a relic of days long past and very rarely matter.
slc1
April 11, 2012 at 8:05 pm (UTC -4) Link to this comment
Re stace @ #25
Actually, it is my information that the man’s first name is John, although his last name is not Silver.
dan4
April 11, 2012 at 8:51 pm (UTC -4) Link to this comment
No way, Scalia is the most radical member of the court. Example: his Lawrence vs. Texas dissent, he actually implied that he wanted to make masturbation illegal.
Crip Dyke, Right Reverend Feminist FuckToy of Death & Her Handmaiden
April 11, 2012 at 9:26 pm (UTC -4) Link to this comment
Why not abolish oral argument?
Why not indeed. Some have said this as if abolishing such would be a horrible thing. Think about it, you have a difficult constitutional question or “Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party” or an appeal from someone on death row. Otherwise the court wouldn’t reach SCOTUS.
Can you imagine these questions being clarified more by 30 minutes of speaking than by the hundreds of pages generated when, say, someone is in court fighting for her life – literally? I love constitutional law, but I’m the first to admit that it can be byzantine and even forming an appropriate question can be tough, much less getting it out without spending multiple sentences clarifying references to, say, Royster Guano Co.’s vision of “similarly situated” persons.
Oral arguments are a chance for the lawyers to be brilliant – or as brilliant as they can be – and use their passion and smarts to draw attention to what already exists in the record. This can serve a useful purpose, as one often has to cover so many bases that one’s principle point can be lost among the necessary references.
The thing is that there are almost always advocates for both lawyers’ positions among the clerks and they will carefully read the documents. They won’t forget much of importance. These are very bright people trained to argue.
And thus oral arguments are more an exercise in ego than anything else. I would be nostalgic for them were they to go, but it’s hard for me to imagine a case in which oral argument determined the outcome.
If Thomas is blase about the proceedings because he knows every word of oral that is at all important (we’ll skip, “May it please the Court”) it can just as easily be because he’s already read everything and he’s quite well aware that orals will be redundant as it could be that he’s so ideologically bound that he knows his opinion on a case before any argument of any kind is made.
I’m not saying it’s not the latter, I’m just saying we can’t assume it is.
Anyway, the only good questions at oral argument are ones that aren’t addressed in the written record AND have the potential to decide the case. When was the last time one of those was asked?
Look, I think that part of why he catches this criticism is that he’s being compared to Marshall, who loved orals – from both sides of the bench – and that’s just not fair.
Chris from Europe
April 11, 2012 at 9:41 pm (UTC -4) Link to this comment
And why would this be bad? You can do back-and-forth debate in written form.
Why wouldn’t it stop? The Supreme Court has a special position in the judicial system by definition.
Like battered spouses or rape victims? And generally, criminal cases before the Supreme Court are reviewed. The confrontation can’t be eliminated, as it should have already happened at this point.
slc1
April 12, 2012 at 9:37 am (UTC -4) Link to this comment
Re dan4 @ #28
I wonder how he would go about enforcing such a law.