Supreme Court Justice Clarence Thomas peppered an attorney with a question during oral arguments on a South Carolina death penalty case. The questioning of an attorney by a Supreme Court Justice would normally not make news but Thomas’s question did, not because it was penetrating, involved a complex point of law, elicited important data, or because he asked it out of just plain curiosity, but because he even asked it at all. It was a rarity. He asked it five years ago, and hasn’t asked another question since then.
His well-documented silence on the court for the past five years has been the butt of jokes, ridicule, and just plain wonderment. How could a high court justice sit Sphinx like while his colleagues routinely rage and bombard attorneys with every conceivable question during oral arguments? In the two decades up to 2008, justices asked on average 133 questions. Thomas’s ultra-conservative ideological court soul mate Antonin Scalia is the most verbose. He’s peppered, badgered and hectored attorneys with more than a one-fifth of the questions asked from the high bench. All the while Thomas has sat silent, inscrutable, distant and even appeared bored.
Thomas has given several different reasons why he’s kept his mouth shut. He claims that he does not see any need to speak up or out since it doesn’t really serve to help him understand, clarify or amplify on a legal point in a case. This is ludicrous. Studies have shown that oral arguments are not just an exercise in verbal theater that serve no real purpose in helping judges make up their minds about cases. They are vital to gathering information, raising and clarifying crucial legal and policy issues and they help build consensus among the justices about opinions they will have to render in a case.
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Oral arguments also are the key to lay down legal guidelines that help courts and judges in similar cases reach decisions in vital cases. Oral arguments are not trifle public relations exercises, but an intimate and necessary part of legal decision making. And judges no matter how versed on case law they are, or how firm they are in their opinion about a case, they take oral arguments seriously. That is all the judges do except Thomas.
This is no accident. Thomas is not the legal boob that his arch critics lambaste him as. That’s their stock explanation for why he remains stone silent on the bench. Thomas has an unabashed and glaringly transparent agenda; a legal and political agenda that has been unshakable since his narrow, controversial and much reviled confirmation in 1991. And that’s to encode his hard right, strict constructionist, states’ rights bent to shape law and public policy.
He has waged relentless political and ideological war against civil rights, affirmative action, gay rights, abortion, prisoner rights, and a knee jerk defense of financial and corporate interests, gun ownership, broadening executive power on such issues as encroachment on civil liberties, and even upholding the government’s right to engage in torture, the wild expansion of police power, and the strict upholding of the death penalty.
This doesn’t require any prolonged give and take on his part with the legion of attorneys that parade before him during oral arguments. His opinions could be mailed in they are so reflexive and predictable. His opinions, briefs, and memos are virtual templates that only need to be changed to pencil in his decision on the specific case that the justices are ruling on at the moment. Thomas virtually confirmed that in cases where conservative principles are at stake he’ll roll out his conservative template for his decision. He once told a fawning gathering of the ultra conservative Federalist Society, “One thing I’ve demonstrated often in 16 years is you can do this job without asking a single question.”
Thomas’s silence, pitiable or laughable depending on how charitable one wants to be, is not the worst of Thomas’s offenses. His abominable decisions on any and all cases that involve civil rights and racial matters have been a colossal shameful mock of the proud civil rights tradition and legacy of the justice who Thomas replaced on the high court, Thurgood Marshall. Thomas’s retrograde, roll-back-the clock opinions in these cases have earned him much deserved revulsion and attack from civil rights leaders and organizations.
Thomas has been their public enemy number one. It’s a designation that Thomas has not only accepted but revels in. He has gone out of his way to thumb his nose at civil rights leaders and uphold some of the worst civil rights and civil liberties abuses even when that means on occasion breaking ranks with Scalia and casting the lone dissenting vote. This was blatantly evident in the infamous case involving a black inmate beaten senseless by jailers in a Louisiana prison. Thomas was the only one of the judges to agree with Scalia that the beating was not cruel and unusual punishment.
Silent Thomas is not a court deaf mute solely because he values listening over talking, or because he’s a legal ignoramus. There’s a method to his silence, and the method is to encode his retrograde court stamp on law and public policy. You don’t need to ask any questions to accomplish that.
Earl Ofari Hutchinson is an author and political analyst. He hosts The Hutchinson Report Newsmaker Hour on the Hutchinson Communications Network aired on radio stations broadcasting to sixty cities and Washington D.C. and streamed on thehutchinsonreportnews.com. Follow Earl Ofari Hutchinson on Twitter: http://twitter.com/earlhutchinson
