Supreme Court

Clarence Thomas on Judicial Grandstanding

|

Via How Appealing, the Associated Press reports on a speech by Justice Clarence Thomas where he criticizes his fellow Supreme Court justices for making too much noise during oral arguments:

Thomas—who hasn't asked a lawyer a question during arguments in nearly four years—said he and the other eight justices virtually always know where they stand on a case by reading legal briefs before oral arguments.

"So why do you beat up on people if you already know? I don't know, because I don't beat up on 'em. I refuse to participate. I don't like it, so I don't do it," Thomas said during an appearance before law students at the University of Alabama.

Thomas didn't name names, but fellow conservative Justice Antonin Scalia is generally considered the court's most aggressive questioner during oral arguments. President Barack Obama's lone nominee so far, Justice Sonia Sotomayor, isn't afraid to ask questions either.

Read the rest here. Read Reason's coverage of Thomas here.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

93 responses to “Clarence Thomas on Judicial Grandstanding

  1. It’s theater. Fun theater, as it gives people insight into how some sharp (and not-so-sharp, on occasion) legal minds think. He’s right that it very rarely actually changes rulings.

  2. What an arrogant, lazy bum?

    If you aren’t going to engage in debate during the trial, why even have it? I guess Thomas just wants to read the briefings and make a decision…that’s pretty easy, right? Who could possibly think of an argument that the great mind of Clarence Thomas has not?

    1. The Supreme Court has almost no original trial functions, with the rare exceptions of one state suing another. Even in those cases, the court appoints a special master or panel to make the evidentiary findings and rules on the report.

      In contrast, Justice Thomas is talking about appellate hearings, where the oral argument is a few hours long at best, and there are usuallly two thorough briefs from the opposing parties, and hundreds of Amicus briefs from third parties interested in the outcome.

      1. Well, there I go showing my ignorance again…

        I suppose there would have been enough oral argument on the matter by the time the case worked its way all the way up to the Supreme Court.

        However, I still find it rather disconcerting how Thomas would just sit there day dreaming will the other justices engaged the attorneys. Kind of like the kid in third grade who just at his desk with his head in his hand…

        1. I respectfully disagree. I worked a lot with Native American school children. Their parents would get co
          plaints from their teachers that the kids weren’t participating in class because they weren’t asking questions. What the teachers failed to understand is that in Native culture kid are taught ot be quiet and listen. They know that if they do that in a public school, in time, any question they might have will eventually be asked by one of the non-Native kids.

          1. co
            plaints = complaints.

          2. Skid, Epic win. Current psych research also cites this behavior for kids of East Asian origin. Asking questions and the entire ‘socratic method’ type of learning style is entirely Western. That doesn’t mean its good or bad.

    2. Who could possibly think of an argument that the great mind of Clarence Thomas has not?

      If the parties in the case did not think of an argument do you really think it is a good idea for a judge to insert new ones into the case?

      The oral portion of a legal argument is simply a show.

      1. Yes, it is a good idea, when it’s the highest court in the land and this is the last hearing the case will ever get.

  3. Who could be against filleting arrogant pompous attorneys in public?

    1. Arrogant pompous attorneys are the worst kind of pompous attorneys.

  4. Gee, The last article I read about this was followed by comments on how that meant he was intellectually incurious and not a first rate legal mind. Of course, the comments were also full of the usual jokes about Scalia deciding it for him, so obviously full of legal scholars…

  5. Almost all hearings are won or lost on the briefs. However, skillful questioning can help emphasize a point that one can use to persaude a colleague. For example, if a justice’s colleague is not persuaded by a slippery slope argument, but the justice can trick the party to admitting there is a risk of the slippery slope through skillful questioning, then the justice might get the colleague to vote the other way.

    1. Thomas does not agree. From the article:

      Thomas scoffed at the idea that the justices try to use questions to influence the opinions of fellow members of the court.

      “All nine of us are in the same building,” he said. “If we want to sway each other we know where we are. We don’t need oral arguments to do that. It doesn’t make any sense to me.”

      1. “All nine of us are connected to a hive mind. If we need to discuss something, we simply think to each other. Oral arguments are unnecessary.”

    2. I propose a law banning slippery slopes. OSHA shall have enforcement power.

    3. i remember my 1L year in evidence class. The ink was still wet on my philosophy degree where they made me learn critical thinking and avoiding the informal fallacies. I questioned the teacher who was using a slippery slope argument. He mocked me for questioning his erudition. That was when it began to dawn on me that “legal reasoning” doesn’t have a fucking thing to do with reasoning. It is adversarial. If appealing to emotion, fear, the slippery slope, Godwin, or authoritaaa is what works… well hell, the ends justifies the means.

      1. Yeah, logic is great and all but the ugly truth is that the slippery slope isn’t a fallacy out here in the real world.

        1. Exactly. The slippery slope as a logical argument is invalid. The slippery slope as a model for human, societal, and governmental behavior is a tautology.

  6. Justice Sonia Sotomayor, isn’t afraid to ask questions either.

    I tried to solve this problem by hooking up with a woman who speaks English as a second language. It didn’t work. There is no solution.

    1. Was she wise? Had she had rich experiences?

  7. “So I put my fingers around his throat like this, and he started swearing in Kenyan. And that’s when I woke up.”

    1. Too Funny! Thanks!

    2. I swear! It is so big I have to use both hands, like this.

    3. Are you certain he wasn’t swearing in Hispanish?

  8. Thomas sees it as a waste of time, based (probably) on a narrow view of the Court’s function (deciding cases).

    Others see it as politico-judicial theater, serving the function (presumably) of getting some message or other out.

    Personally, I’m inclined to Thomas’s view.

  9. This is the same guy who thinks it’s OK for a school to strip search a 13 year old girl for maybe possessing ibufuckingprofen.

    1. But also the only guy who thinks that growing pot in your own house and smoking it there doesn’t constitute interstate drug commerce and that the feds don’t have a right to stop it.

      These guys are more complicated than the little boxes we create for them.

    2. “ibufuckingprofen”

      Never heard of it.

      Any interesting side effects?

      😉

      1. It removes the clothing off little girls?

        1. Is Roman Polanski aware of this?

    3. I’ve gotta read up on that dissent. It would seem that Thomas sees school as something separate from government and more like private property, where headmasters and principals have a broad range of authority. If parents could freely remove their kids from school, I think he’d have a point there.

      And what matt said. Word.

      1. It’s a good read. His rationale is that “common law in loco parentis” should apply. Thus, by ceding authority to the school, the parents convey their entire authority to discipline the child to the school, short of physical abuse.

        That public schooling is now mandatory, whereas at common law it was not, did not strike Justice Thomas as noteworthy. Nor did the many other changes since that time – for example that schools are more likely to house late adolescents than they once were, or that Bill of Rights freedoms are now viewed as binding state governments too – something which Justice Thomas has indirectly indicated that he opposes.

        1. I disagree with his ruling, but it’s worth remembering that it isn’t necessarily the principals’ faults that schooling is mandatory, so to punish them by restricting their powers, when a lot of them are tasked with presiding over environments more anarchic than anything in adult society does seem a bit unfair.

  10. Brian Lamb can’t be too pleased with Thomas declaring the arguments all but irrelevant. He’s been itching to televise them for years.

    1. Scalia is the bigger hurdle. I’m fairly sure he’s the one who said that he’d allow cameras in the courtroom “over his dead body”.

      1. Actually that was Souter. But Scalia is strongly opposed to the idea as well. http://www.c-span.org/camerasinthecourt/

  11. I generally appreciate Thomas, but could you imagine if none of the Justices asked a question?!

    I agree the questions are not really meant to clarify someone’s argument, but to argue back, but if there’s a chance something will be said in a different way that get through to someone else on the bench, then the questions are worth it.

  12. The lack of an alt text on that picture is racist.

    1. The lack of alt-text on any picture on the internets is racist.

      1. You know what’s really racist? Type “black people are” into a google search window and revel in the suggested topics.

        1. Sweet Jesus…

        2. Smell like cocoa butter?

  13. The purpose of asking questions in a legal setting is almost never to elicit more information. That’s why the first rule is, “Never ask a question you don’t know the answer to.” You do the questioning in order to argue your own point of view in front of others, with the goal of persuading them. I don’t see why it’s any less valid in SCOTUS than it is in a courtroom trial.

    1. Justices aren’t brain dead jurors. And, they can actually discuss the case with each other.

      In a trial, the attorneys aren’t allowed to engage the jury directly. And the jury isn’t allowed to ask questions of the witnesses.

      And, the facts are defined by what the witnesses say. Not by what the attorneys say.

    2. Scalia specifically addresses that, Tim. He points out that the Justices all work together, and can argue with each other any time they want.

      1. Well, I’d rather they discuss it in public, when their minds are most likely to be fully engaged with the case, than when they’re singing show tunes at Scalia’s place.

        I have no beef with Thomas’ not asking questions. I just don’t think it’s his business to badmouth those who do.

  14. Oral argument provides an opportunity for judges to test their inclinations and theories after they’ve read the briefs and formed a clear or tentative idea of how to decide the case, and how to write the decision. And, yes, oral argument can change outcomes, though obviously it does so only a relatively small percentage of the time. But it often makes for better law, because judges use it to see what counterarguments the litigants can muster to the opinion they’re planning.

    Since Justice Thomas often decides cases on points which litigants didn’t predict were even at issue, they often do not discuss those points in their briefs. Since Justice Thomas doesn’t raise those questions in oral argument, they are effectively wholly denied any opportunity to address his concerns.

    As David A. Karp writes in the Florida Law Review (61 Fl. L. , describing the BONG HiTS 4 JESUS case: “when the Court issued its opinion, Justice Clarence Thomas in a concurrence announced an extraordinary position: that the First Amendment does not apply at all to students. He wrote that the Court should overrule the leading precedent, Tinker v. Des Moines Independent Community School District, which has remained good law for thirty-eight years. Justice Thomas’ conclusion surely surprised the parties. None had briefed the issue, and Justice Thomas had not asked them about it during oral argument.”

    Similarly, in Holder v. Hall, “when the Court released its opinion, Justice Thomas analyzed the case from an entirely new perspective-one never broached in briefs or raised in oral argument. [FN93] Justice Thomas wrote in a sixty-five page concurrence [FN94] that the Court should engage in “[a] systematic reexamination” of the Voting Rights Act…although the Court had not accepted certiorari on the question.

    Karp concludes, “This Note argues that Justice Thomas’ profound silence during oral argument undermines the Court’s deliberative process-and weakens the legitimacy of the far-reaching conclusions, like those in Morse, that Justice *614 Thomas reaches without the benefit of briefing or oral argument. By removing himself from oral argument, Justice Thomas’ opinions do not benefit from the full adjudicative process designed to test theories in open court. Many of his opinions, therefore, read less like the product of actual litigation, and more like constitutional commentary on issues related to-but not directly raised in-a case. Justice Thomas’ silence on the bench is more than a peculiarity; it allows him to announce new theories of the Constitution without vetting those theories in open court.

    1. Except that there are 8 other Justices with an opportunity to decline to join Thomas’s opinion.

      1. Yes, but how does that change Justice Thomas’s obligation as a jurist to at least allow attorneys an opportunity to address his concerns, before he rules against their client based on a century-ago discarded doctrine which neither party thought was important enough to include in their briefs?

  15. RC Dean,

    Given that Thomas has “a narrow view of the Court’s function (deciding cases)”, why would he raise issues on which the court hasn’t even accepted review, as he did in Holder v. Hall, summarized above?

    I think most court-watchers would conclude that Justice Thomas’s rulings are the most sweeping and expansive, not only as to the rule they would adopt, but as to the amount of legally irrelevant commentary that they interpose (see, e.g., his partial dissent in Redding, the school strip-search case – why is he engaging in starry-eyed musings about a time when teachers taught and students obeyed?

  16. I’m with Thomas on this one. While I wouldn’t want to restrict a justice’s right to ask questions of counsel, the process is mostly a joke. And Thomas is right–the justices, or perhaps more accurately, their clerks, have plenty of opportunity to discuss issues and to lobby each other to join various opinions. There is a lot of stuff that goes on behind the scenes at the SCOTUS.

    Tim,

    I don’t agree. That’s true of attorneys representing clients, but it’s not necessarily true of judges or justices. They can, do, and should ask questions to get answers they don’t know. Don’t forget, too, that there are a number of cases that aren’t so politically charged as to be pre-decided before oral arguments.

    One other purpose for the oral arguments, incidentally, is to find out what the hell the brief really means on certain points. Plenty of appellate briefs are poorly written, which can put the justices in a real bind come decision-making time.

    1. [shaking fist at PL]
      You and your damn protest turned my blogger buddy into a raving Asian comment happy nutcase this weekend. I hope you are happy!

      1. Only one thing will make me happy at Hit & Run.

        Adnotatiunculae bilicis delenda est.

        1. Stop messing up my brain with Polish.

  17. It’s impressive that Thomas can get by with no oral. I’d have a tough time doing without.

    1. Have at me!

      1. Look, serial balls, I only pitch to the ladies.

    2. 4 years is a long time.

  18. SCOTUS rarely hears a case because they care about it in particular. Cases are heard because they involve unresolved principles of law that will affect many cases in the future. Oral arguments are a chance to test the boundaries that will be applied using hypothetical questions that may be unrelated to the facts of the case at hand but very important for determining how future cases should be decided. The justices may have made up their minds on the case at hand but that is almost irrelevant to the importance of the oral arguments.

    1. SCOTUS rarely hears a case because they care about it in particular.

      What the fuck ever. That would imply that SCOTUS has some sort of institutional integrity, which they don’t. Oh course they care about particular cases. As mush as they care about outcomes. How can you look at Thomas’s decisions and not conclude that he has an agenda for school children which is basically, “shut the fuck up and do what you told and quit complaining that the KY jelly is cold when I search you anus.”?

  19. Oh, as for the missing alt-test: “I find your lack of faith disturbing.”

    1. Or: “I’m fucking wide open!”

      1. Don’t say that to me, man. I’m a Bucs fan.

  20. I have a co-worker who clerked for a lower-level appeals court. Not only did they have opinions set by the oral argument, they already had the first draft of the opinion written. The questions were usually only used to tweak the language of the final draft, but never to change the opinion.

    1. I have seen the operations of a state supreme court, and that’s not the case there. Different courts, different practices.

      As described in the Woodward book “The Brethren”, for example, US Supreme Court rulings sometimes reverse after the first draft – for example, one member of the 5 member majority decides that they can no longer support the opinion, and switches.

  21. I recall a quote from Thurogood Marshall some years ago: (To his clerks) “I’ve already know how I’m going to vote on this matter. Now go find me some case law to back it up.”

  22. I agree with Thomas if you can’t find an answer to your question in the thousands of pages of submitted briefs, then perhaps you are not up to the task of being a justice. Also agree that persuasion best works privately among the justices instead of badgering lawyers into puppets for your view.

    1. Or, for fucks sake, could these lazy fucks cancel one of their $50,000.00 speaking engagements and go down to the law library themselves?

    2. Briefs to the Supreme Court are capped at, I believe, 60 pages.

      Basically, briefs lay out what the parties believe are their 2 or 3 best legal arguments. Further, Thomas is the lone member of the Court who routinely finds that the case should be decided by something no one else thought of, and thus isn’t in the briefs at all. Thus, oral argument participation from him is needed most of all.

  23. I’ve watched a lot of Kabuki theatre legislative hearings at the Hawaii state legislature.

    I learned to despise the legislators who acted differently when there was a camera in the room, versus just a bunch of observers. They really were showboating.

    That said, occasionally a moment of clarity would emerge from a really pointed question from one of the less stupid legislators. Or from a dull question from one of the really stupid legislators, though those epiphanies were more about what sort of power-hungry idiots can somehow get elected than about the legislation itself.

    I don’t fault Thomas for not asking questions, so long as he gets the right rulings. The question is, would we get better rulings, from a libertarian standpoint, if he occasionally asked a pointed question that exposed the idiocy behind a particular line of argument by an attorney before SCOTUS?

    Or would that fail to sway the other justices?

    And should it be the function of the justices to use these hearings to try to sway public opinion?

    Thomas’ point seems to be his questions at these hearings wouldn’t actually change the other justices’ minds, and that it is undignified and uncompassionate to pound on an attorney in public in an attempt to change public opinion on a matter, when you can do the same thing in your written opinion when the case is decided.

    But, the evidence seems to be that Thomas is one of the smartest and least unlibertarian justices overall, despite some hiccups, so I’m willing to cut him some slack.

  24. I’ve watched a lot of Kabuki theatre legislative hearings at the Hawaii state legislature.

    I learned to despise the legislators who acted differently when there was a camera in the room, versus just a bunch of observers. They really were showboating.

    That said, occasionally a moment of clarity would emerge from a really pointed question from one of the less stupid legislators. Or from a dull question from one of the really stupid legislators, though those epiphanies were more about what sort of power-hungry idiots can somehow get elected than about the legislation itself.

    I don’t fault Thomas for not asking questions, so long as he gets the right rulings. The question is, would we get better rulings, from a libertarian standpoint, if he occasionally asked a pointed question that exposed the idiocy behind a particular line of argument by an attorney before SCOTUS?

    Or would that fail to sway the other justices?

    And should it be the function of the justices to use these hearings to try to sway public opinion?

    Thomas’ point seems to be his questions at these hearings wouldn’t actually change the other justices’ minds, and that it is undignified and uncompassionate to pound on an attorney in public in an attempt to change public opinion on a matter, when you can do the same thing in your written opinion when the case is decided.

    But, the evidence seems to be that Thomas is one of the smartest and least unlibertarian justices overall, despite some hiccups, so I’m willing to cut him some slack.

  25. Fucking double posting server squirrels. How the heck does that happen from hitting the “submit” button once?

    1. Save your oral arguments, we all know you hit it twice.

  26. “I swear, Souter’s head is only about the size of a pumalo.”

  27. I brought you into this world; I can take you out. And I can make another one that looks just like you.

  28. Since Justice Thomas often decides cases on points which litigants didn’t predict were even at issue, they often do not discuss those points in their briefs. Since Justice Thomas doesn’t raise those questions in oral argument, they are effectively wholly denied any opportunity to address his concerns.

    In my view this is the most compelling argument against Thomas’ practice, but it fails to persuade me on the following grounds:

    If an issue has not been raised in the written briefs, what is the chance that a lawyer will have anything substantially interesting to say about it at the time of the orals? The SCOTUS arguments I’ve listened to always have the lawyers sounding like guests on a talk show – constantly repeating the same sound bites that restate their written arguments, with tiny variations.

    I assume Thomas would argue that he _does_ vet his arguments with the other justices, as the decisions are written. It is then that he has a chance to reconsider (or they do). His point is that virtually nothing substantive can take place at the orals, and I think that is very likely correct.

    Perhaps this argues for allowing some written back with the lawyers and forth as decisions are being composed. I doubt Thomas would object to that.

    As for whether justices should decide cases on non-argued grounds, I think the answer is yes. The SCOTUS should be a principled defender of individual rights, and should use every opportunity to exercise that role. So long as an opinion has direct bearing on the case at hand, there is no reason to restrict the decision to the arguments raised by the lawyers or amici.

    1. Roger,

      Thanks for your response. Several possibilities. First, the lawyer can answer as best they can muster, and at least they’ve had something of a chance. Second and more importantly, the lawyer can say “Your honor, I must frankly say that I haven’t thought about that. I will request permission to file a supplemental brief addressing that issue” – there are procedures in place for this.

      For instance, in “BONG HiTS 4 JESUS,” no one thought that it was worth discussing whether to readopt ‘common law in loco parentis’ – which essentially says, anything the parents can do, the school can do, such as spanking, shaming, or searching a student nude. This would involve overturning dozens of prior court decisions stretching back at least 50 years. But Thomas alone thought so. If he had raised the issue, the student’s lawyer could have tried to explain why that doctrine shouldn’t apply any more, perhaps by showing that it was actually less widespread at the time of the founding than Thomas believed. But he got no such opportunity.

  29. Since Justice Thomas often decides cases on points which litigants didn’t predict were even at issue,

    [citation needed]

    1. See above. As David Karp writes: In “Holder v. Hall, “when the Court released its opinion, Justice Thomas analyzed the case from an entirely new perspective-one never broached in briefs or raised in oral argument. [FN93] Justice Thomas wrote in a sixty-five page concurrence [FN94] that the Court should engage in “[a] systematic reexamination” of the Voting Rights Act…although the Court had not accepted certiorari on the question. “

    2. A little googling found this PDF from the Community Rights Counsel, a left-wing legal foundation, which apparently was disappointed in Thomas’s penchant for pontificating on Constitutional questions.

  30. See above. As David Karp writes: In “Holder v. Hall, “when the Court released its opinion, Justice Thomas analyzed the case from an entirely new perspective-one never broached in briefs or raised in oral argument. [FN93] Justice Thomas wrote in a sixty-five page concurrence [FN94] that the Court should engage in “[a] systematic reexamination” of the Voting Rights Act…although the Court had not accepted certiorari on the question. “

  31. Well, its the “often” that strikes me as tendentious and in need of substantive support.

  32. I agree with RC, the same two examples keep getting brought up over and over again. Doesnt sound very “often” to me.

  33. As far as justices go, I like Thomas more than the rest. He sucks on a good number of issues, too, but at least he picks up the libertarian bat on occasion.

    My biggest beef with SCOTUS justices and appointees, by and large, is their untrammeled love for all things government. If anything, I think the reverse bias would be preferable. In fact, I hedge too much: a bias against government action should be in the job description.

    1. In fact, I hedge too much: a bias against government action should be in the job description.

      Good luck with that. The person who picks SCOTUS appointees, and the people vetting those appointees, are all employees of the government. Virtually all of them have a vested interest in growing the government.

      1. I know, I know.

        Which is why the only way I’ll get the Censor is by conning the states into it.

  34. Caption:

    Then Long John grabbed her titty like this…

Please to post comments

Comments are closed.