Clarence Thomas: The Pen Is Mightier Than the Microphone

Today marks the fourth anniversary since the last time that Supreme Court Justice Clarence Thomas asked a question during oral arguments. The National Law Journal's Tony Mauro notes the occasion by discussing a recent law review article entitled "Why Justice Thomas Should Speak at Oral Arguments," which claims that Thomas is harming both himself and the Court with his damnable silence. As Mauro writes:

Author David Karp argues in the Florida Law Review that, by keeping mum, Thomas in essence hides the ball and shields his often provocative legal positions from being tested before they make their way into Court opinions….

"By removing himself from oral argument, Justice Thomas' opinions do not benefit from the full adjudicative process designed to test theories in open court," Karp wrote. "Many of his opinions, therefore, read less like the product of actual litigation, and more like constitutional commentary." Rattling off other unorthodox views Thomas has taken, Karp added, "Justice Thomas' revision of the constitutional order emerges from his chambers without exposure to public debate."

I'll begin by admitting that I, too, would be happy to hear more from Thomas during oral arguments. But let's not forget that both sides (and their friends) in every Supreme Court dispute file lengthy legal briefs that lay out their respective arguments in great detail. More importantly, as Thomas told law students at the University of Alabama last year, the justices have already read the various briefs and basically made their minds up by the time oral arguments come around. Thus the "exposure to public debate" that Karp emphasizes isn't the only place where the action is. The justices read and evaluate the various briefs and then set about persuading each other in order to reach a majority of five or more. And as the respected Supreme Court reporter Jan Crawford Greenburg has convincingly documented, Thomas is anything but quiet during those crucial debates among the justices. Here's Greenburg writing in The Wall Street Journal in 2007:

Clarence Thomas has borne some of the most vitriolic personal attacks in Supreme Court history. But the persistent stereotypes about his views on the law and subordinate role on the court are equally offensive–and demonstrably false. 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.

A final word in defense of Justice Thomas: His dissents often get it right.

For more on the "vitriolic personal attacks" that Thomas endured, take a few minutes to read Edith Efron's extraordinary 1992 Reason feature, "Native Son: Why A Black Supreme Court Justice Has No Rights A White Man Need Respect."