Justice Clarence Thomas, Silent All These Years

We’re closing in on the fifth anniversary of the last time Supreme Court Justice Clarence Thomas asked a question during oral arguments. To mark the occasion, New York Times Supreme Court correspondent Adam Liptak looks at the legal debate Thomas’ silence has sparked:

He asked no questions, for instance, in a 2007 case about high school students’ First Amendment rights. In a concurrence, he said he would have overturned the key precedent to rule that “the Constitution does not afford students a right to free speech in public schools.”

Neither side had advanced that position. The basis for and implications of his concurrence were not explored at the arguments, because, by asking no questions, Justice Thomas did not tip his hand.

No other justice joined Justice Thomas’s opinion. “If Justice Thomas holds a strong view of the law in a case, he should offer it,” David A. Karp, a veteran journalist and third-year law student, wrote in the Florida Law Review in 2009. “Litigants could then counter it, or try to do so. It is not enough that Justice Thomas merely attend oral argument if he does not participate in argument meaningfully.”

During last’s year fourth anniversary celebration I noted that while Thomas’ silence on the bench may be regrettable, there’s no question he’s taking a very active part in the justices’ internal debates—and that, after all, is where the Court's decisions are ultimately made. As the legal journalist Jan Crawford Greenburg wrote in The Wall Street Journal in 2007:

An extensive documentary record shows that Justice Thomas has been a significant force in shaping the direction and decisions of the court for the past 15 years.

Immediately upon his arrival at the court, Justice Thomas was savaged by court-watchers as Antonin Scalia's dutiful apprentice, blindly following his mentor's lead. It's a grossly inaccurate portrayal, imbued with politically incorrect innuendo, as documents and notes from Justice Thomas's very first days on the court conclusively show. Far from being a Scalia lackey, the rookie jurist made clear to the other justices that he was willing to be the solo dissenter, sending a strong signal that he would not moderate his opinions for the sake of comity. By his second week on the bench, he was staking out bold positions in the private conferences where justices vote on cases. If either justice changed his mind to side with the other that year, it was Justice Scalia joining Justice Thomas, not the other way around.

For more on Thomas' jurisprudence, go here. To find out why Reason named him one of our “35 Heroes of Freedom,” go here.

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  • Fluffy||

    I have to admit I don't understand the appeal of the oral argument.

    I don't understand Karp's position at all.

    What the fuck are the briefs for?

    Text>Speech. Speech sucks, actually. Write your damn positions down and let the judges scribble away in the margins.

  • ||

    These issues are too complex to be settled via oral argument. They can only be properly resloved in writing. The appeal of oral argument is that it allows judges and lawyers to show how great they are. If they did away with oral argument, the Supreme Court bar would whine up a strom. They would do so not because their practices or cases would be in anyway affected. They would just be pissed they would no longer be allowed to indulge in oral argument. It is a waste of fucking time; just a big kid version of law school junior olympics.

  • ||

    whine up a strom.

    Oh, come on! Could whining really re-animate a former Dixiecrat Presidential candidate and Senator?

  • Mr. FIFY||

    Shit, we live in a country where a student can be savaged for having a FaceySpace account critical of A Teacher, off school grounds, with no connection whatsoever to the school computers or physical property.

    Fuck that. We're raising a generation of Obey The Fucking Authorities-style pussy-kids. We'll be even more fucked ten, twenty years from now - if we make it that long.

  • The Truth||

    It's why the Chinese will crush us.

  • ||

    Okay, this is one spoof post I'm sure about. See, the Truth believes that we should all be enslaved by a strong central government in order to achieve the perfect and invincible economy that the Chinese have. So he'd never criticize the U.S. for breeding sheep.

    Stand corrected.

  • ||

    I get it! The Truth is a Lie!

    lolol!

  • Vermont Gun Owner||

    He meant China will beat us because we are going to be 20 years too late.

  • ||

    My experience is that judges RARELY request oral arguments these days. If you can't persuasively lay out your best argument in your brief (not to mention your reply) then you should've gone to barber college.

  • Almanian||

    barber college

    SLAVER!!!!!!!!111!!!!!one!!!

  • juris imprudent||

    You have to understand, oral argument is where Scalia gets to put his best digs in, like in McDonald - with his put-down of the P&I argument. Or a liberal gets to show how much s/he cares about the common man. This is where the show is - not in all that dull writing. Take that away and what would the talking heads talk about?

  • ||

    I will take Thomas' silence over Scalia's assclownery any day. Oral argument is nothing but a forum for judges and lawyers to strutt around for each other and the public. It accomplishes nothing.

    I agree with Scalia about a lot of things. But, I will admit he is an assclown. And his performance during oral arguments is a good example of this. Most of what he asks are for his own intellectual masterbation and to show the world how awsome Antone Scalia is, not to actually further the debate.

    Good for Thomas. I hope his silence continues and serves as a model for futue justices.

  • RyanXXX||

    Thomas is the only principled one on the court though.

    And I agree with you about the oral arguments. But is it good for the most strictly constructionist, libertarian-leaning judge on the court to stay silent while the statists squawk away?

  • ||

    Thomas - the piece of shit who voted that police officer thugs did not need a warrant to invade a private home in 'Lawrence v. Texas'?

    And then arrest two people for consensual sodomy - is a friend of freedom?

    Fuck you, Root.

  • ||

    Good to see the facility is letting you have internet access again Shrike. Sorry to see the treatments still are not working.

  • ||

    Good to see your very own definition of freedom is truncated to your conservative personal satisfaction, John.

    If we are not free in our own homes in a consenting relationship - where are we free?

    I won't wait for a Palin tweet to answer this modern conundrum.

  • ||

    It's refreshing to see that even when I might agree with you, shriek, you're still so stupid and detestable that it makes me want to take the opposite position from you no matter what.

    That's a skill, shriek.

  • ||

    It's a valid point that Thomas has crapped all over the concept of limited government and civil liberties. He's only crapped much less than the others, that's all.

  • ||

    Of course I am not stupid - just perfectly logical as always.

    A basic tenant of liberty is personal freedom (PRIVACY). When I point that out to the Bushpigs like John they scatter like field mice.

    Conservatives HATE privacy rights.

    Is that so stupid? You miserable misanthrope?

  • Not an Economist||

    But unlike Justice Thomas, you support an all powerful federal government.

  • ||

    I support the 4th Amendment limit on government - conservatives do not.

    I also support the 16th Amendment - if that is "all powerful" then so be it - its Constitutional.

    Citizens decide some limits. Some the Court decides -- but eventually people do as they can elect politicians who truncate rights as conservatives do.

  • Old Mexican||

    Re: shrike,

    Citizens decide some limits. Some the Court decides -- but eventually people do as they can elect politicians who truncate rights as conservatives do.


    This is what I love about the paranoid left. Here's a guy who can say in a single sentence that people decide but they don't always, and that people choose rights but then they don't.

  • Old Mexican||

    Re: shrike,

    A basic tenant of liberty is personal freedom (PRIVACY).


    A basic tenant of liberty is one that pays his rent. On time. In full.

    Is that so stupid?


    Oh, I don't know... What mood am I today... Hmmm... Ok, yeah, I'm game: You're so stupid.

  • fish||

    Shrikes world: Consensual sodomy is still okay...everything else requires formal government blessing!

  • ||

    As I recall, the issue in 'Lawrence v. Texas' was Texas's sodomy law, not a warrantles search.

    Thomas merely said that he didn't believe that the federal government had the power to restrict the states police power with regard to sodomy. The court ruled almost exactly that the time that the issue came before them before.

  • ||

    The two cops "searched" the wrong house - thus the arrest had no warrant.

  • Jeffersonian||

    You are correct and shriek, as usual, is full of shit.

  • ||

    Huh... I never would have thought to put Clarence Thomas and Tori Amos together in the same sentence.

  • ||

    Everybody knows Clarence is a cornflake girl.

  • ||

    I hate you so much right now.

  • ||

    BFD.

    You hate everyone.

  • ||

    Don't insert yourself into my conversations with NutraSweet, shriek. I didn't give you permission.

  • STEVE SMITH||

    STEVE SMITH NOT NEED PERMISSION TO INSERT HIMSELF ANYWHERE.

  • Hugh Akston||

    His written arguments always cause little earthquakes.

  • juris imprudent||

    Is that like the petit-morte - at least for libertarians. I think it would be "the vapors" for progs.

  • ||

    I recall Thomas responding to the criticism of his silence in that the justices already have their minds made up when they walk in the chambers, or something to that effect. I tend to agree with that sentiment and would be very surprised if they didn't.

    It also jibes with a story I heard about Thurogood Marshall. He'd say to a clerk, "I already know how I'm to decide. Now go find me case law to back it up."

  • ||

    Clerks run the show, anyway.

  • Robert||

    Then why don't they just appoint the clerks and forget about the judges?

  • ||

    That's a brilliant idea.

  • Clerks||

    This place would be great if it weren't for all the fucking litigants.

  • Rather||

    I recall differently; he gave an interview with Dianne Sawyer(IIRC), and spoke of his experience as a black man influencing his quiet nature, and how he felt more comfortable is listening, and reflecting

  • Neu Mejican||

    He's just a Strong Black Vine from the Dark Side of the Sun that is Abnormally Attracted to Sin and is In the Springtime of his Voodoo.

  • ||

    See, you just had to go a get all fancy. I was just saying that Thomas is a chronic masturbator because he eats too much meat.

  • creech||

    Who are we to question the position of a "third year law student?"

  • Teddy K||

    Hey Barry, come over here and do a little jig on the porch while telling me what a race traitor that Clarence Thomas is. Would you do that for me?

  • The Left||

    "Immediately upon his arrival at the court, Justice Thomas was savaged by court-watchers as Antonin Scalia's dutiful apprentice, blindly following his mentor's lead. It's a grossly inaccurate portrayal, imbued with politically incorrect innuendo, as documents and notes from Justice Thomas's very first days on the court conclusively show. Far from being a Scalia lackey, the rookie jurist made clear to the other justices that he was willing to be the solo dissenter, sending a strong signal that he would not moderate his opinions for the sake of comity. By his second week on the bench, he was staking out bold positions in the private conferences where justices vote on cases. If either justice changed his mind to side with the other that year, it was Justice Scalia joining Justice Thomas, not the other way around."

    We lie. It's what we do.

  • ||

    It amazes me how racist or sexist the left gets away with being. 'Cause that's half of what went on with Thomas and maybe more than half of what's going on with Palin.

  • ||

    What are you talking about, ProL? TEAM BLUE says they're not racist or sexist, which makes it true.

  • ||

    That's right, they're the Reality-Based Community.

    I stand corrected.

  • Joe Biden||

    Barry is clean, articulate, and knows his place.

  • Harry Reid||

    No Negro dialect, either!

  • ||

    But he no have experience of wise latina woman. AYE AYE AYE AYE AYE AYE AYE AYE!!

  • Joe Biden||

    Though I still wont let him near a Wal-Mart. He might try to steal something.

  • ||

    Not racist! Enlightened!

  • P B||

    Silence = Stupidity. It just furthers the narrative of Thomas' detractors, see Sen. Reid.

  • ||

    Who cares whether the pedophile justice speaks or not?

    It was fucking advil Clarence....fucking advil. Fucking creep.

  • Neu Mejican||

    "Judges are not qualified to second-guess the best manner for maintaining quiet and order in the school environment."
  • Old Mexican||

    Re: Troy,

    Who cares whether the pedophile justice speaks or not?


    There's a pedophile justice? Is that like the gun justice or the hang- drawn-and-quartered justice... or God's justice?

  • Robert||

    I think the orals are just spectacle for visitors to the Sup. Ct. Along with the "Oye, oye" stuff and the robes.

  • juris imprudent||

    We should make them wear the powdered wigs, since we can't put them in stocks.

  • ||

    The basis for and implications of his concurrence were not explored at the arguments, because, by asking no questions, Justice Thomas did not tip his hand.

    This is on the short list of stupidest fucking things I've ever read about SCOTUS. Oral argument occurs after briefing, so there is no opportunity to actually research and brief an issue raised by a Justice at oral argument.

    And the notion that everybody is going to stop down during oral argument to have a long, reasoned discussion of anything is utterly ludicrous.

  • Tony||

    I suppose it's his prerogative not to speak. But it's also fairly rude. He's indicating, during every oral argument, that he disdains this activity his 8 colleagues engage in. One should never let rigid principle trump politeness. It won't hurt anyone for him to ask a question or two if something intrigues him. And it might dispel the perception that he's got nothing much going on inside his skull.

  • ||

    That (mis)perception is held exclusively by remarkably stupid people like you. I don't think Clarence Thomas gains anything by seeking to change the minds of absolute fucking morons.

  • Tman||

    it's also fairly rude.

    It's rude because he doesn't dance the way the other judges dance? It has zero effect on the outcome of his decision. Why does it matter at all, and why is this "rude"?

    he disdains this activity his 8 colleagues engage in

    As it has been adequately explained already, it IS a stupid show that the judges put on during Oral arguments. If anything, it's the 8 that show disrespect to the case being presented to pretend that the oral arguments are relevant at all.

    It won't hurt anyone for him to ask a question or two if something intrigues him.

    He has asked questions before, it's just been 5 years since the last time. Clearly nothing has intrigued him yet.

    it might dispel the perception that he's got nothing much going on inside his skull.

    Right, Tony and the "veteran journalist, third year law student" are adequately informed enough to judge how smart SCJ Clarence Thomas is in regards to his job.

    Do you idiots realize how ridiculous you sound?

  • Tony||

    It's rude, in general, to sit in contempt of the very activity people around you are engaging in. It won't hurt anyone for him to speak. Even if the oral is pointless, there are a lot of pointless traditions in the SCOTUS and government.

  • Tman||

    How the hell is it rude that Thomas declines to engage in a silly game that is by no means a "tradition" of the SCOTUS?

  • Tony||

    If it's not a tradition then why is it done? I'm just saying, it would be rude to openly mock people saluting the flag during the star spangled banner. If you don't like it and can't deal with being there, the appropriate thing to do is leave. That's what Thomas should do.

  • Tman||

    So because Thomas hasn't asked any questions in the last five years -remember he has asked questions before- this means he's "openly mocking" the court?

    Not only that, but you think it would be LESS rude if Thomas just didn't show up at all?

    Sense, this does not make.
    What color is the sky in your world?

  • Tony||

    He's expressed his disdain for the practice on multiple occasions. And I think he should just leave, forever, but I may be biased.

  • Tman||

    Typical goalpost-moving Tony.

    "Uh, he has expressed his disdain before! That's rude!"

    You don't like Thomas because he believes that the Constitution means what it says and says what it means. You like Justices who believe in an "evolving" constitution.

    Don't worry, your boots will be nice and shiny for neck-stomping once us "undesirables" are minimized as the rest of the media peddles this liberal line of putrid bullshit.

    A liberal paradise awaits if you could just get rid of those pesky "originalists"!

  • Tony||

    You don't like Thomas because he believes that the Constitution means what it says and says what it means.

    Ha. Not this tired old bullshit. The Constitution means to Clarence Thomas whatever he wants it to mean. That he may claim extra credit from claiming that he's righter than everyone else doesn't mean he earns it.

  • ||

    How the fuck is not asking questions at oral argument in any way "openly mocking" the other eight justices or the proceedings?

  • Vermont Gun Owner||

    His silence! It's mocking us!

  • juris imprudent||

    My hope is that every time Thomas doesn't ask a question, that Tony gets a cramp.

  • Old Mexican||

    Re: Tony,

    But it's also fairly rude.


    "Damned if you do, damned if you don't."
    Old Statist proverb.

  • CrackertyAssCracker||

    Ya Man! I mean, what good is a judge if just sits there all "impartial" as doesn't try to guide his favorite side into making a better argument?

    I can't believe thats somebodies real fucking arument.

  • ||

    I like Thomas, but everyone here who says that oral argument is meaningless is just wrong, at least with respect to serious Constitutional issues before the Supreme Court. When the Court is deciding the big-ticket cases, generally both sides have plausible arguments, and oral argument is a chance for those arguments to be tested by critical questioning.

  • ||

    Have you heard some of the questions?

  • juris imprudent||

    You apparently don't know the difference between moving the ball and grand-standing.

  • David||

    Watch his profile by C-Span. He says he doesn't ask questions not only because his mind is made up, but in deference to the attorneys arguing the case. They get 30 minutes and he thinks that time is theirs to dispense with.

    Hardly contempt for the process.

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