Malcolm Stewart, a veteran of the U.S. solicitor general’s office, was already in trouble defending the federal law against corporations’ political spending on TV ads when Chief Justice John G. Roberts Jr. hit him with a gotcha question. Could the government prevent a corporation, the chief justice asked, from publishing a book just because it included a single sentence endorsing a political candidate?
When Stewart said yes back on March 24, 2009, the court’s conservatives flinched. Later, in conference, Justice Anthony M. Kennedy Jr. who had started the colloquy apparently used Stewart’s answer to help argue for what eventually emerged in Citizens United v. Federal Election Commission (2010) as a broader-than-expected ruling freeing corporations from any limits on political spending.
So much for the argument that oral argument does not matter at the Supreme Court. In many cases, the justices might rule pretty much the same way if they decided cases solely on the basis of briefs without oral argument. But Citizens United is only one but surely the most dramatic example of cases in which oral argument, prompted by the justices’ questions from the bench, has shaped the court’s eventual decision.
Surely that explains why eight of the justices actively participate in oral argument. But not Clarence Thomas, who has now gone eight full years since his last question from the bench (Holmes v. South Carolina, Feb. 22, 2006). Jeffrey Toobin, the outspoken CNN legal analyst and staff writer for The New Yorker, marked the anniversary with a post on the magazine’s web site provocatively entitled “Clarence Thomas’s Disgraceful Silence” [Feb. 21].
Thomas’s behavior on the bench, Toobin wrote in the opening paragraph, “has gone from curious to bizarre to downright embarrassing, for himself and for the institution he represents.” Toobin went on to describe Thomas, now 65, as “grayer” and “heavier” than when he came to the court 22 years ago and to accuse the justice of distraction and inattention during arguments.
Supreme Court watchers from across the ideological spectrum piled on not on Thomas, but on Toobin. “Disgraceful,” wrote a pseudonymous blogger on Erick Erickson’s conservative web site Red State. “There is no good argument” for calling Thomas a disgrace, wrote the liberal-leaning University of California-Irvine law professor Rick Hasen on his Election Law Blog. In the Los Angeles Times, centrist editorial writer Michael McGough opined that Toobin “doesn’t make much of a case for outrage over [Thomas’s] admittedly odd behavior.”
In fact, Toobin hurt his case by a factual inaccuracy: Thomas does pay attention during arguments, as University of Baltimore law professor Garrett Epps pointed out in a tweet. Thomas can be seen on the bench asking pages for law books and occasionally talking with seatmates Breyer to his right or Scalia to his left. The hyperbolic headline also detracts from Toobin’s credibility, whether it was his or an editor’s.
Toobin also misdirected his argument by contending that the benefit of the justices’ questions is the information and insights the public gets about the justices’ thinking. On that point, it is true, as Adam Liptak wrote in The New York Times [Feb. 25], that “the real work of the Supreme Court is done in written opinions, and there Justice Thomas has laid out a consistent and closely argued vision.”
Yet the work of the Supreme Court is also done in oral argument – in engaging with lawyers from opposing sides on the facts and the law at issue and the implications of a possible ruling one way or the other. Thus, for better or worse, Citizens United could have been a narrower ruling if Kennedy and Roberts had not pressed the beleaguered Stewart on how far the government’s argument could be extended. And courtroom watchers can recall any number of instances when justices will ask a lawyer, in all seriousness, for advice on how to write the eventual opinion.
Thomas’s silence disrespects this part of the judicial process. He has explained his silence in the past by saying that he wants to hear more from the lawyers. But lawyers are told that oral argument is their one best shot to address a justice’s questions about their case. Thomas denies lawyers this opportunity. Perhaps that is because, as he has said about the justices generally, that he has his mind pretty much made up before the arguments begin.
The court’s credibility, however, depends on the legal fiction that the justices’ minds are not completely made up until the case is submitted. Thomas is hiding the ball by giving lawyers no clue as to his thinking about a case until they see how he voted when the decision comes out.
Sometimes, Thomas has a very distinctive to approach to a case. When the court struck down a California law prohibiting violent video games for minors, Thomas argued in a lone dissent that minors have no First Amendment rights whatsoever (Brown v. Entertainment Merchants Association, 2011). If Thomas had that thought before oral argument, it would have been beneficial to say it out loud and hear the lawyers’ responses.
To be clear, Supreme Court oral arguments do not lack for questions from the justices. But Thomas’s willful silence is, if not a disgrace, at least a disservice and one that gives no respect to the black-robed role he plays.