Silent Clarence

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Supreme Court Justice Clarence Thomas is scheduled to speak at U.Va.'s  annual Federalist Society Student Symposium for legal scholars and students on Feb. 26.


For me, the interest of this event  lies in its verb. The idea of Justice Thomas "speaking" is quite titillating, given that he has just marked his fifth anniversary of sitting through the Court's oral arguments in total silence.


Imagine, going five years of hearing people argue without feeling the urge to ask a single question? I can't get through five minutes of a staff meeting without peppering management with queries.

So does Justice Thomas' silence matter to us? To the Court? To Justice Thomas, himself?


Last week, The New York Times opined that it does. In an editorial titled, "The Thomas Issue,"  the Times' opinionist wrote:

This [5-year] milestone has stirred a wide conversation about his effectiveness as a justice following another about his ethics. They are actually related. How Justice Thomas comports himself on the bench is a matter of ethics and effectiveness, simultaneously. His authority as a justice and the court’s as an institution are at issue. 

The editorial goes on to worry about conflict of interest, because of Ginni Thomas' (Justice Thomas' wife) lucrative career lobbying against the health care law -- the constitutionality of which  is certain to end up before the Supreme Court.

The editorial then offers this:

Taking part in oral arguments would be good for the justice and the court. In a landmark article about judging, the scholar John Leubsdorf said a justice should abide by three principles: avoid basing a vote on personal considerations; avoid basing a vote on facts learned outside the case; and consider both sides’ arguments. Taking part in arguments is a way for Justice Thomas to convey that he honors the third principle. By engaging with lawyers for both sides in cases and showing open-mindedness in exchanges with them, he would show his dedication to the court’s impartiality and to its integrity as an institution.

The Denver Post ran a syndicated Bloomberg News article by court watcher Ann Woolner who complains that:

... by staying silent, Thomas is surely giving up potential influence. (This is fine by me because the less sway he has, the freer the rest of us are from his cramped view of the law.) 

It also makes him look weird. 

"What's wrong with him," a high school teacher asked one of her co-workers, a woman who had known Thomas in childhood, during a school trip to the high court, according to the 2007 book "Supreme Discomfort: The Divided Soul of Clarence Thomas." Why Thomas so easily cedes some of the power that comes with his position remains something of a mystery. His explanations, offered up in public appearances, vary. They include: 

• His Geechee accent (also known as Gullah, rooted among some African-Americans from the southeastern U.S. coast) made him self-conscious as a poor child from Pin Point, Ga. And as a high schooler at a virtually all-white seminary outside the city, he got into the habit of not speaking. 

• He thinks it's counterproductive to interrupt lawyers as they're making their points. 

• He learns more by listening than talking. 

• Other justices usually ask the questions he wants answered, anyway. 

• He thinks there's too much chatter from the bench already.

On the 4th anniversary of the Thomas Silence,  Tony Mauro wrote in the National Law Journal that :

... [At] the four-year mark, it may be time to take Thomas' silence more seriously. A recent law review article, titled "Why Justice Thomas Should Speak at Oral Argument," asserts that Thomas' silence actually damages the Court and its decision-making process — not to mention Thomas' own reputation. 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. 

He has something to say, and he should say it in court. Argument would be enriched by his perspective," Karp said in an interview last week. . . 

Karp also argued that Thomas' silence needlessly tarnishes his reputation — especially when it appears that wakefulness, as well as words, escape him. When school groups visit the high court, it is one of the first things about which they ask their tour guides afterward. In a 2007 biography of Thomas, authors Kevin Merida and Michael Fletcher quoted students from Washington's Benjamin Banneker Academic High School who visited the Court and talked about Thomas' demeanor. "Maybe he stayed up all night reading the court case — he was tired," one student offered. Said another, "If you know people are going to be watching you, you'd think you should try to make yourself presentable."

Stephen Colbert has his own Stephen Colbert-ish  explanation for Justice Thomas' five year silence. 

The consensus appears to be that Justice Thomas' silence is tied to his rather rigid legal views. Writing as part of a NY Times debate addressing the question: Does Clarence Thomas's Silence Matter?, Jamal Greene, an associate professor at Columbia Law School and a former clerk for Justice John Paul Stevens, had this to say: 

Many of the reasons for oral argument assume that the justices are either keen to persuade others of their views or are open to persuasion themselves. There is little evidence that Justice Thomas fits this description. He is a judicial iconoclast, opposed to following constitutional precedents with which he disagrees and unwilling to moderate his positions to achieve consensus. He is the court’s most frequent lone dissenter, and to assign an important majority opinion to him is to risk losing your majority because of his uncompromising language. 

It is difficult for a silent justice to win over colleagues, but he may not care to.

In that same debate,  however, Vikram Amar, associate dean for academic affairs and professor of law at University of California, Davis  (as well as a former law clerk for Justice Harry Blackmun), downplays the heft of Clarence Thomas marathon silence in the sound and fury of oral arguments because, he says, they're "largely, but not completely, ceremonial."

The one thing that I, as a neutral observer, would opine is that Clarence Thomas seems unavoidably bedecked with controversy. He is, I think, the first public figure I've ever heard of who's gotten himself in trouble by not opening his mouth.