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He Speaks!

[ 70 ] January 14, 2013 |

The Sphinx has spoken:

Justice Clarence Thomas broke his nearly seven-year silence at Supreme Court oral arguments Monday. But no one is sure exactly what he said.

Thomas seemed to be making a light-hearted joke about lawyers trained at his alma mater Yale Law School, or its rival, Harvard. But several justices were speaking and laughing at the time, and the court reporter lost Thomas’s comments during the crosstalk.

I am obliged to note that, while there are many good reasons to be highly critical of Thomas, his implicit argument that oral arguments at the Supreme Court are mostly pointless grandstanding is one of his virtues.

Comments (70)

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  1. Crackity Jones says:

    This has been the sole point on which I’ve defended Justice Thomas. I think people cling to it as further proof of his relative lack of distinction compared to the other justices. But indeed, much of it can be showboating and inanity (just look at Scalia during NFIB v Sebelius). Philosophically, I think oral argument is important. But inn practice I think it is overstated (at least in its current incarnation). Thomas’ view if I remember correctly, is he just wants to hear the parties make their cases without intervention. In smaller appellate courts its not a big deal, but with 9 justices? The man has a point.

    • Slocum says:

      Perhaps if it were just him and 2 other justices, he’d see some reason to say something. But, you know, too many cooks, etc.

  2. TT says:

    Of course, in our Halperinized, Cillizzafied, and Milbanked media, how Thomas’s speaking will “play politically” and “what it means” for Republicans (good news!) is far, far, far more important than the actual substance of the man’s jurisprudence and its impact on tens of millions of lives. For shame.

  3. mpowell says:

    Is this really the first time he’s spoken in 7 years? I can understand the argument that constantly interrupting the attorneys is pointless, but he never had a question to ask? Not once? That sounds ridiculous.

    • James A says:

      Not really. If you listen to or read transcripts of SC oral arguments, what you find are that the “questions” are really just the justices fucking with the lawyers for sport, and typically the lawyers in turn are pitching for the public at large.

      All the parties know that the intellectual work of the court is done in the briefs and written arguments. Any meaningful questions could only be address that way. It really is the truth that Thomas’s reluctance to participate in that dog and pony show really is one of the few things that really well of him.

      • CJColucci says:

        I’d say that’s mostly true, but a judge asking literally no questions in nearly 7 years — as opposed to not many questions — is either trying to prove a point or otherwise very weird. It’s just too hard to believe that there hasn’t been a single occasion in all that time when Justice Thomas was unclear about what counsel was saying, or had some question about the implications of the lawyer’s position.

        • chris says:

          It’s just too hard to believe that there hasn’t been a single occasion in all that time when Justice Thomas was unclear about what counsel was saying, or had some question about the implications of the lawyer’s position.

          It’s slightly less hard to believe that Thomas has never had a thought one of his colleagues didn’t have first.

      • mpowell says:

        I understand most of the work is written, but that doesn’t provide any opportunity for the court to ask questions or get feedback does it? Can you clarify this for me, because it would be expected that a justice would want a lawyer to clarify or explain an argument better or differently at times.

        • Tybalt says:

          I have to say, not really. If you can’t write a brief that makes your argument crystal clear to someone as well versed in legal theory (and the background to a case) as Justice Thomas, I don’t think your point is packing anything at all.

          The thing is, there almost never really is the opportunity to clarify anything said by a party in oral argument before the SCOTUS, because it’s rare as a seven-leafed clover that someone gets more than two sentences in before one of the usual suspects starts their “Socratic” jerkoff session.

          • Warren Terra says:

            I mostly agree with this – but I still have to imagine that, over the course of years, having the arguments and counter-arguments and perhaps counter-counter-arguments in your hand, there still would be some time where you’d want to turn to an attorney and say some version of “the other side wrote x, and what they wrote seems pretty compelling, and your written arguments didn’t seem to do a good job of countering it; could you please take this opportunity to better respond to their argument?”.

            Or, for that matter, you think that at some point over the course of yours you’d want to get a lawyer you agree with to expand and expound on an argument you think is especially telling, for the benefit of your fellows on the bench.

            • Phoenix_rising says:

              It’s that last thing that makes oral argument at SCOTUS fun in the same way NASCAR is fun…for the crashes.

  4. Jim says:

    A rich comment, considering his Yale degree is the reason he is where he is.

    • Anon21 says:

      To be fair, we don’t even have a clue what he said. Rather than citing this inscrutable, possibly “rich” comment, you should probably just cite to one of his many published remarks about how Yale Law is a terrible institution.

      • Johnny Sack says:

        Well I guess it makes sense given his deep insecurity about wondering if it was only affirmative action that got there. I read (about) his memoir, and him saying that he didn’t want to go there, and would’ve preferred Howard. Yeah-I’m sure he would’ve had the same career path.

        What comments has he made about how Yale Law is a terrible institution? Certainly not terrible from a career perspective. What negative remarks has he made?

  5. Ian says:

    Perhaps he’s been speaking very, very quietly all this time.

  6. Sherm says:

    Was there a pubic hair on his coke again?

  7. Scott de B. says:

    I, for one, find oral arguments very educational. Even if they don’t have much value-added in a legal sense, they represent the only time these cases are discussed in a public venue, and from that standpoint I wish Thomas spoke a lot more. Maybe it wouldn’t be useful to him, but it would be useful to me and other court observers.

    • L2P says:

      All the briefs are public records. If we didn’t have oral argument, the press would actually have to report the briefing, which is more detailed, actually explains the issues, and cites to the record so you can at least try to see how much bullshit they’re throwing.

      IMHO, if the Supreme Court eliminated oral argument we would be BETTER informed. Instead of thinking that the case hinged on some stupid answer to Kennedy’s stupid question about some tangent he was thinking about over his Cheerios this morning, we’d know what the case was about. And if the justices wanted further informatoin on somthing, it’d be in writing so we’d know exactly what they were concerned about.

      • CJColucci says:

        Honey Nut Cheerios?

      • Glenn says:

        There’s no question that if the press focused more on the arguments in the briefs than on oral argument, the public would be better informed. And there’s also no question that much of what happens at oral argument is shadowboxing among the Justices. But legitimate questions can arise that aren’t answered in the briefs, either because they weren’t thought of or because the parties had an interest in not elucidating them. And oral argument is the final opportunity to try to flesh those out. I don’t particularly care whether Thomas ever utters a word, but his suggestion that he’d rather let the parties make their cases uninterrupted would eliminate what is, to my mind, the only reason to actually have argument.

      • Bill Murray says:

        If we didn’t have oral argument, the press would actually have to report the briefing, which is more detailed, actually explains the issues, and cites to the record so you can at least try to see how much bullshit they’re throwing.

        they say I’m a dreamer, but evidently I’m not the only one

        • Phoenix Rising says:

          Dear lard, you’re suggesting that our so-called “press” could brief the briefs in a way that would leave folks more informed than is the case now. Dreamer.

  8. Zifnab says:

    I’d have more respect for him if he wasn’t taking money under the table through his wife’s PAC operations. :-p

    You can argue all day about the various philosophical merits of judicial style, but Thomas will forever be remembered as a bad judge simply because he doesn’t bother with a judge’s number one priority – reconciling the law with itself and with modern public opinion.

    Every one of Thomas’s briefs I’ve seen reads like a polished up “When I rule the world, things will be different!” rant. He has no respect for common law or precedent. He doesn’t give two craps about the real-life ramifications of his decisions. His “Originalist” arguments are as tortured as he needs to make them, in order to get to his politically motivated conclusion.

    Thomas is an opportunist and a crook. All the rest of his schtick is just so much camouflage.

  9. Derelict says:

    I have always thought that Thomas’s silence was due to his embrace of the idea “Better to keep one’s mouth shut and be thought a fool than to open it and be known as one.”

  10. I have only ever engaged in appellate argument in state court, but I have seen judges come around based on oral argument– it’s exciting to see. I’ve also judged countless moot court arguments, and have been persuaded myself (although of course that’s a rather different experience). The case for great transparency is also made by Scott deB above. People deserve to hear the arguments so they can try to understand where the ruling comes from. Wishful thinking sure, but since when is that a bad thing?

    • Scott Lemieux says:

      Lower courts are a whole different issue.

      • I’m not so sure. The briefs are where the scholarship goes, absolutely. But oral argument is where the advocate and the court get to tease out nuances that might not have been briefed. At the Supreme Court level those issues are going to come up– if they were easy cases they wouldn’t be there.

        • C.S says:

          It’s particularly important where the justices — or one of them, or some of them — have completely misunderstood something in the briefs. Now, of course this can happen because of poor briefing, but it has happened more than once that I’ve been in front of an appellate panel that was being very aggressive in their questioning, and quickly coming to the realization that they didn’t understand something pretty basic in the briefs. Once directed to the portion of the brief which they initially misunderstood, they turned their aggression on my opposite number.

          Yeah, not Supreme Court, but still . . . judges rely a lot on their clerks, and sometime their clerks are wrong.

          • L.M. says:

            But this goes to Scott’s point. The federal courts of appeal handle about 60,000 cases each year. The Supreme Court handles less than 100. Circuit judges can plausibly make mistakes that could be resolved at oral argument. But it’s hard to imagine how the Supreme Court could manage to get a case totally wrong on the papers, and still somehow salvage that case in a useful way at oral argument.

            • Richard says:

              Its never going to happen at the Supreme Court level. Every case will be thoroughly briefed, usually with many amicus briefs. Totally different than the situation at the trial level or the appellate level.

              What the norm should be is to have oral argument but let the counsel finish a ten or fifteen minute presentation before questions are asked. These days its unusual for either counsel to get two sentences in before the questioning begins.

            • Bill Murray says:

              i would think the problem is as much some of the SC justices not really being interested in whether they understood the arguments, but how they can use the case to advance their partisan interests. ie the same reason they preen during questioning

        • L2P says:

          Often the lower court judges haven’t even READ the briefs. It’s often possible to change minds in the lower courts, where they’ll often have basic misunderstandings of the context of the case, the case law, or the record. You can see it in opinions – if you wonder where a crazy appellate opinion came from, that’s probably where.

          The Supreme Court level? No. Not even at the state level. There’s too few cases and too much attention. I’ve never seen it happen at the Supreme Court level.

      • SamR says:

        Are they? I thought Roberts was argued around on the Affordable Care Act on the taxing power (or, in a less generous interpretation, wasn’t argued around but after deciding to change his mind re-read the oral argument transcripts and flipped based on that).

    • Johnny Sack says:

      But that function is also performed by just letting the lawyers state their case without (often useless) questions. I mean, every time I watch The People vs. Larry Flynt and Ed Norton’s oral argument, I come around, but cases like that are few and far between.

  11. loganbacon says:

    He doesn’t need to ask the lawyers questions. He just needs to ask Scalia how to rule.

    • AAB says:

      The widely-shared notion that Thomas just follows Scalia’s lead is really problematic, especially since it papers over the fact that Thomas is actually quite a bit more conservative than Scalia. Thomas also really does have (for better or worse) a unique approach to judicial interpretation, and it does a discredit to that to think he’s just parroting Scalia.

      • Scott Lemieux says:

        I address this in the linked post, but the idea that Thomas is Scalia’s sock puppet is wrong and kinda offensive.

      • Johnny Sack says:

        Justice Thomas’s judicial philosophy is a discredit to his judicial philosophy.

        But yes, Scott is right-it is offensive to state that he’s Scalia’s puppet.

    • Malaclypse says:

      Not fair. Scalia is nothing but an unprincipled hack. Thomas just has very bad principles. Thomas will occasionally rule against Republican interests, in a way Scalia never would.

  12. sleepyirv says:

    If you’re going to take 7 years to let out a bit of snark, it should be one epic burn. The other Justices should get up and give up high fives and the target should burst in tears. Louis C.K. should lead a parade for you afterwards.

  13. L.M. says:

    It’s charming that Clarence Thomas thinks this case is funny, but by far the funniest part of oral argument came when Scalia referred to “what Louisiana, in its generosity, has given to capital defendants[.]“

    • Murc says:

      My soul threw up a little when it read that.

    • Richard says:

      Well, Scalia was referring to a very unusual Louisiana rule which provides that defendants in capital cases are entitled to TWO appointed counsel, a rule that the federal courts have never required. Scalia was making the point that since two counsel are not constitutionally required, the defendant here doesn’t have a federal constitional argument that the failure to find funding for two counsel (and the continuance of the trial because of the lack of funding) meant that the defendant’s speedy trial rights were violated. What Scalia missed, and what defense counsel seems to have done a good job in pointing out to him and refusing to back down to Scalias’ badgering, is that Lousiana appointed an associate counsel for the defendant and appointed a lead trial counsel but refused to provide funding for lead trial counsel. The lead counsel then told the court that he could not proceed because no funding had been provided and, as a result of this, the case was repeatedly continued. Appellate counsel argued that it wasn’t the failure to fund two counsel that was in issue, it was the failure to fund a lead counsel. Defendant is arguing that the continuances were the result of the state’s failure to provide funding and the defendant’s speedy trial rights were therefore violated. It seems to be a fairly fact specific question and not likely to lead to any great law, one way or the other (however, I’m not a criminal defense expert so others might know more than me). Since the effect of buying the defense argument is to let an accused murderer, who confessed to the crime, go scot free, its a hard sell.

      • mpowell says:

        I don’t understand why we haven’t resorted to torts for things like this. I feel like it would make people a lot happier if the solution was to fine the state $1M and direct it towards charity or towards the accused if he is found not-guilty. Letting the guilty walk when the state screws up is pretty non-ideal. I understand the motivation, but I think public opposition to this kind of approach has resulted in a slow and gradual undermining of procedural rights among conservative jurists. There are cases where the exclusionary principle would still apply though. Any kind of coerced testimony, for example.

        • Bill Murray says:

          how do you know someone is guilty without a fair trial? I am assuming there was no plea, since there was an effort at a trial. I think conservative jurists who undermine procedural rights should have to eat fries made in oil that was just used to fry their gonads, but that probably is not going to fly

          • Johnny Sack says:

            Legal guilt trumps factual guilt. Period.

          • mpowell says:

            There’s a difference between procedural issues that corrupt the finding of fact and those that simply violate civil rights. An illegal search does not generally corrupt finding of fact. Tortured confessions do. Same with inadequate counsel but not, for the most part, the lack of a speedy trial. It appears to me that people frequently fail to appreciate the distinction. Our legal system also does not appear to recognize one for essentially strategic reasons, but that’s a different thing.

          • Richard says:

            Violation of the right to speedy trial isn’t a fair trial issue. There are reasons to insist on a speedy trial but the lack of a speedy trial doesn’t mean that the trial is unfair. In this case, it is very likely that the defendant is guilty. The question is whether we let him walk, even if he is guilty, because he wasn’t given a speedy trial. . Defendant’s claim here is not that he was deprived of a fair trial

            • rea says:

              Excessive delay in trying a case can and does affect the fact-finding process, in ways that are often difficult to prove conclusively. Witnesses die, or don’t remember things as well; evidence disappers. It is often difficult to document just how the delay has affected the fact-finding process. That’s why we have a simple rule–give the defendant a speedy trial—rather than a complex and unfair rule–make the defendant prove that he lost evidedeence that would make a difference to the outcome.

              And it’s no answer to say the defendant is “very likely” guilty–that’s a rationale for getting rid of trials altogether.

              • Karate Bearfighter says:

                For a clear example of the unfairness caused where there is no speedy trial, skim through the fact pattern from the petitioner’s brief in this case. Counsel puts the names of witnesses that were unavailable at the time of trial in italics; it’s quite striking.

            • Joe says:

              I appreciate looking behind “Scalia is an asshole” and dealing with the specifics. The right to speed trial as rea notes can be a fair trial issue but as you say it’s not absolute either way. Anyway, the question here is specifically narrow — http://www.scotusblog.com/?p=157528

  14. Major Kong says:

    Did anyone check to see if Scalia’s hand was up his butt making his mouth move like a ventriloquist’s dummy?

  15. Joe says:

    Oral arguments are a place for a lot of justice grandstanding but some questions are useful and the few times Thomas actually asked questions in the past, he actually at times raised some useful things. So not asking ANY questions is a bit much, especially since like a Powell he actually wouldn’t just grandstand but provide something substantive & give the advocates a chance to address some of his concerns.

    • Joe says:

      But, really, it’s not a major sin or anything — it does look bad & rightly or wrongly sends a message that it is sort of a “fu” to everyone. He actually is fairly open in other contexts and even had a conversation that was on C-SPAN a few months back with Prof. Amar (Yale) who has a quite different judicial philosophy in various respects.

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