It’s no surprise to find the liberal pundit Jeffrey Toobin criticizing a conservative Supreme Court justice. But would it kill him to adopt a reality-based approach when doing so? Here’s how Toobin sets the scene in his latest piece for The New Yorker, where he attacks Justice Clarence Thomas for keeping quiet during oral arguments. Toobin writes:
Thomas...is physically transformed from his infamous confirmation hearings, in 1991—a great deal grayer and heavier today, at the age of sixty-five. He also projects a different kind of silence than he did earlier in his tenure. In his first years on the Court, Thomas would rock forward, whisper comments about the lawyers to his neighbors Breyer and Kennedy, and generally look like he was acknowledging where he was. These days, Thomas only reclines; his leather chair is pitched so that he can stare at the ceiling, which he does at length. He strokes his chin. His eyelids look heavy. Every schoolteacher knows this look. It’s called “not paying attention.”
This is nonsense. I’ve attended a number of oral arguments in the past two years and I’ve routinely seen Thomas leaning forward, watching the lawyers (and his colleagues), and even conferring quite enthusiastically with both Justice Stephen Breyer (to his right) and Justice Antonin Scalia (to his left). In fact, during the first day of the March 2012 Obamacare oral arguments, which centered on whether an 1867 tax law barred the legal challenge to the health care law from going forward, I watched Thomas and Breyer together poring over a massive book that appeared to be a volume of the U.S. tax code. What were they up to? It’s possible Thomas was suggesting a line of questioning for Breyer to use. After all, as Thomas told an audience at Harvard law school, he sometimes helps generate Breyer’s material. “I’ll say, ‘What about this, Steve,’ and he’ll pop up and ask a question,” Thomas said. “So you can blame some of those [Breyer questions] on me.”
Toobin is either himself guilty of not paying attention, or he is perhaps too eager to bend the facts in order to paint his opponents in an unflattering light.