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Can you hear me now, Justice Thomas?

clarence-thomas.jpgIt’s common knowledge, and joke fodder, among the legal nerds that Justice Thomas doesn’t speak up much during oral arguments. Even still, I found it a little shocking to be told that Justice Thomas hasn’t said a single word this term, meaning he hasn’t uttered a word from the bench during oral argument since February 22, 2006 — twenty-one months ago! While in Michigan as part of his book tour, Thomas said that he doesn’t speak up much because he thinks oral arguments are about the arguments, not about the justices talking. Reports the wonderful Dahlia Lithwick:

Of course, Thomas was more subtle. As he put it, “[M]y colleagues should shut up!”
He later said he’d chosen those words for their “shock value,” but went on to add, “I think that they should ask questions, but I don’t think that for judging, and for what we are doing, all those questions are necessary.” Thomas then expanded on his colleagues’ self-indulgent need to talk at what is, after all, called oral argument, with this analogy:
Suppose you’re undergoing something very serious like surgery and the doctors started a practice of conducting seminars while in the operating room, debating each other about certain procedures and whether or not this procedure is this way or that way. You really didn’t go in there to have a debate about gallbladder surgery. You actually went in to have a procedure done. We are judges. This is the last court in a long line in our system. We are there to decide cases, not to engage in seminar discussions.

Lithwick thinks Thomas is nuts, calling it “rather astonishing” that he thinks the court’s role is simply to render a decision, without serving any “educative or public role.” And while I don’t wholly agree with Thomas’ take, I do agree some. I absolutely think the Bench should interact with the attorneys during arguments, asking questions and pushing the assertions made by the lawyers. But I don’t really think they should go into long speechifying, nor do I think that their role, during argument, is to edumacate.

All that being said, I also agree with the notion that the Supremes could use a little more transparency. A willingness to talk to the press a little more, allowing televised broadcasts of oral arguments, etc. Hell — I think we should make all the Justices live together and film that shit. With the WGA strike going full-steam and shows falling into reruns, there’s plenty of room on the primetime schedule for “The Real World: Judicial Briefs” edition. Who’s with me?

| Comments (2)


Oh Lordy, I would pay hard cash to watch Justice Scalia have to compete for bathroom time with Justice Ginsburg.

Speaking as 1) a surgeon and 2) the son of an appellate judge, I must say the quote from Thomas struck me as particularly stupid. First of all, when surgeons encounter a tough situation, they most certainly do engage in discussion, bringing up and dispensing with the various possibilities. As well they should. And, I'd guess, as Thomas-as-patient would hope. Second, it seems that jurists involved in decision-making at that level must interrogate the advocates for both sides and bring up implications. The advocates have studied the issues more deeply than the judges ever will. Ever hear the audio collection called "May it Please the Court?" Recorded arguments and questions at the Supreme Court over many decades. Fascinating. Enlightening. Maybe someone ought to send a copy to Thomas.