Editore"s Note
Tilting at Windmills

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February 28, 2008
By: Kevin Drum

IN WHICH I SYMPATHIZE WITH CLARENCE THOMAS....The Associated Press notes an anniversary:

Two years and 144 cases have passed since Supreme Court Justice Clarence Thomas last spoke up at oral arguments. It is a period of unbroken silence that contrasts with the rest of the court's unceasing inquiries.

....Leaning back in his leather chair, often looking up at the ceiling, Thomas takes it all in, but he never joins in.

This may actually be the only topic that I agree with Thomas about. As near as I can tell, oral arguments before the Supreme Court are treated primarily as blood sport, sort of like frat hazing but for grown men and women. The putative point of the proceedings — i.e., presentation of a legal argument — is never allowed to take unfold in anything like a judicious manner, and the lawyers' arguments are entirely contained in their briefs anyway. The questioning rarely seems to add anything to them.

Frankly, I'd be surprised if any justice ever has changed his or her mind about a case based on the questions they ask during oral arguments. My guess is that Thomas has figured this out and sees no point in joining in the charade. I can't say that I blame him.

UPDATE: Commenter Kevin provides some further insight:

I attended a speech by someone from the Office of the Solicitor General last year, and he spoke about this exact topic. He has argued many, many cases before the Supreme Court. He said that for most cases that get receive media attention (i.e. those that deal with politically sensitive issues), there is little, if any, possibility that oral arguments will make any difference. However, in some of the more technical types of cases, such as cases that deal with obscure procedural nuances, oral arguments can help to flesh out a party's case. On occasion, orals can change the opinion of a justice, but probably not in the cases that laypeople care about.

Kevin Drum 1:22 AM Permalink | Trackbacks | Comments (104)

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The putative point of the proceedings — i.e., presentation of a legal argument — is never allowed to take unfold in anything like a judicious manner, and the lawyers' arguments are entirely contained in their briefs anyway.

Well, that's kind of the point, Kevin. The lawyers' arguments ARE contained in the written briefs, so there's no point at all in having them just stand there and read those briefs aloud. The whole point of oral arguments is to ask questions, to poke at the gaps, to find the flaws in the reasoning that has already been submitted on paper.

Any justice worthy of the job would participate in oral arguments and use them as a way to better understand the case. But Thomas just sits there like a bovine fool. I doubt he reads the written arguments either.

Posted by: Oregonian on February 28, 2008 at 1:36 AM | PERMALINK

My uncharitable guess: "Better to remain silent and be thought a fool than to open one's mouth and remove all doubt".

Posted by: Uncle Vinny on February 28, 2008 at 1:37 AM | PERMALINK

I was thinking it had more to do with a certain quote by Ben Franklin.

Posted by: chris on February 28, 2008 at 1:39 AM | PERMALINK

On occasion, orals can change the opinion of a justice, but probably not in the cases that laypeople care about.

FWIW, I attended a speech by someone from the Office of the Solicitor General last year, and he spoke about this exact topic. He has argued many, many cases before the Supreme Court. He said that for most cases that get receive media attention (i.e. those that deal with politically sensitive issues), there is little, if any, possibility that oral arguments will make any difference. However, in some of the more technical types of cases, such as cases that deal with obscure procedural nuances, oral arguments can help to flesh out a party's case. On occasion, orals can change the opinion of a justice, but probably not in the cases that laypeople care about.

Posted by: Kevin on February 28, 2008 at 1:40 AM | PERMALINK

Methinks that GHWB's characterization of him as the finest judicial mind in the nation at the time of his nomination keeps his mouth shut. I think he does have some sense of shame.

Posted by: gregor on February 28, 2008 at 1:41 AM | PERMALINK

Justices (which is to say their clerks) have already made up their minds by the time oral arguments are made. It is a pretty pointless exercise.

Posted by: Old Hat on February 28, 2008 at 1:48 AM | PERMALINK

I think he does have some sense of shame.

Shame and self-hatred are not the same thing. Have you even read his autobiography? He hates himself on the one hand for being the product, in his mind, of affirmative action and has a palpable feeling that he didn't earn any of his various honors (Which, to be fair, isn't true. Thomas isn't a great justice but he's okay. More dignified than that 24-obsessed baboon Scalia, anyway.).

So, he has self-hatred galore, but there's also quite a bit of hatred of the various Whites who have helped him along because he feels that they took away the aforementioned and desired legitimacy from him.

He's definitely a fascinating character. Ironic that a party that made its mark bitching about "aggrieved minorities" frequently celebrates a, well, member of the minority who happens to be aggrieved.

Posted by: Jim on February 28, 2008 at 1:49 AM | PERMALINK

Scalia the Papist likes to interrupt constantly to prove to himself that he's a great mind and a tough guy. He fails at that.

Mr. Justice Thomas says nothing because he knows he is incapable of adding anything. Recall Bart Simpson's promotion into the gifted class--a mistake compounded by inaccurate interpretation of testimony and a moron is suddenly exposed to intelligence. And he realizes he doesn't belong.

Posted by: Mark on February 28, 2008 at 2:01 AM | PERMALINK

Scalia the Papist

Ridiculous and offensive. Would you refer to "Ginsberg the Zionist"?

Posted by: Old Hat on February 28, 2008 at 2:13 AM | PERMALINK

Your sympathizing is ridiculous. Clarence Thomas is not in some dopey English 101 class where some idiot professor knocks down your grade for the course if you don't "contribute" every day and evince phoney "interest" in the course and the "fascinating arguments" that take place in his classroom in a "wonderful growing experience" and "exchange" that "widens young minds."

This is a supposedly trained legal scholar who must have some things he wonders about and some issues he wants to bring up in every case. The guy could say SOMETHING. "I'd just like to bring up blah-blah-blah." ... "I'd just like to ask you blah-blah-blah."

Doing your job does not mean that you are necessarily indulging in "blood sport." When you turn in articles and talk to your bosses or co-workers is it "blood sport"? When you do ANYTHING at the office and talk with ANYONE is it "blood sport"?

Is it just plain fucking bizarre to say nothing for 100s of days????

When you say you sympathize with Clarence Thomas, it's just because you've found a cutesy "angle" to take on this "issue," you're full of smug delight at what an original thinker you are, so clever. "Really, I sympathize with the man, truly I do. It's blood sport! Blood sport! Oh, quite!"

Obviously, you would be an IDEAL CONTRIBUTOR to CLASS DISCUSSION. It's all just a game and a pose for the phonies of this world. Remember to scrunch your brow as you put on your "intellectual face" and talk with a hollow "mm, I'm really wrestling with these issues" voice.

Posted by: Anon on February 28, 2008 at 2:38 AM | PERMALINK

your blog is very useful

I am learning a lot

hearing from all these somehow changed my views and opinions but I appreciate that

all d best!

Posted by: bad credit credit cards on February 28, 2008 at 2:51 AM | PERMALINK

"'Scalia the Papist'
"Ridiculous and offensive. Would you refer to 'Ginsberg the Zionist'?
"Posted by: Old Hat"

Old Hat's finding this "ridiculus and offensive" might not be offensive, but it is certainly ridiculous. Scalia is an extreme religious Catholic nutcase Papist. If Ginsberg supports Israel and is a Zionist, which I assume she does and she is, it is NOTHING LIKE being some mad extremist Papist.

If Ginsberg were frothing at the mouth and twisting all of her arguments to follow extremist, reactionary religious views, then maybe the comparison would be a little more accurate.

I just don't think Old Hat has a shred of understanding or sensitivity when it comes to the use of language. "Papist" has a whole history going back hundreds of years as a highly descriptive epithet with all sorts of implications that every educated person will understand. "Zionist" does not.

Posted by: Anon on February 28, 2008 at 2:51 AM | PERMALINK

It is ironic tag or obvious tag that a blogger has sympathy for a guy that says nothing.... A blogger!

Posted by: jerry on February 28, 2008 at 3:03 AM | PERMALINK

Kevin,

I don't know. Your argument seems to me to be wrong on two points.

1) While the oral arguments may not change the decision made, do they have also no affect on how the majority, and dissenting, opinions are written? If there is any affect there then oral arguments remain an important and significant part of the process.

2) Even if the oral arguments do not change any opinions, they may be very important, nonetheless, in shaping those opinions. Given that the attorneys involved will be required to get through oral arguments means that they must put together briefs that will withstand that scrutiny, so they do put together written arguments that are the best that they can do. Take away the test of oral arguments and the quality of the written briefs will likely go down, thus negatively affecting the decisions.

Given the above, it is true that if only eight of the justices participate, the value of oral arguments are still maintained. But it is an a case of one lazy justice.

Posted by: MSR on February 28, 2008 at 6:45 AM | PERMALINK

I had the rare opportunity to attend opening arguments before the Supreme Court several years ago. It was explained to me beforehand that there would be very little evidence presented there except the brief itself, because the case has been rehashed many times before. This is exactly what I saw. The solicitor presented the brief and the judges took turns asking him questions about the case. Nothing dramatic at all. So, I think, to say that Thomas has not asked a single question in all of those cases is either an indication of his omnipotence or his total lack of interest.

Posted by: pol on February 28, 2008 at 7:02 AM | PERMALINK

"My guess is that Thomas has figured this out and sees no point in joining in the charade."

My guess is that he does not speak because he knows he is out of his depth and does not want to look stupid.

Posted by: bob h on February 28, 2008 at 7:17 AM | PERMALINK

Granted, the court is filled with a bunch of hacks and a bunch of people who are backed into a corner by a bunch of hacks, but in a sane world asking questions verbally or in written form is a reasonable way to figure things out. If for no other reason so that lawyers understand the judges concerns without becoming an expert on their childhood, body language, and pet peeves.

Oh yeah, and televise it. Unless that violates the equal protection act or something.

Posted by: B on February 28, 2008 at 7:37 AM | PERMALINK

Kevin,

I don't think it's a stretch to say there appears to be a connection between your sympathy for Clarence Thomas's muteness and your own fondness for disclaiming along the lines of:

"I don't know anything in particular about the following subject, and I don't really care one way or another, but I'll throw this out for y'all to bicker about anyway...."

I'd say there's some real ennui issues there.

Posted by: mattski on February 28, 2008 at 7:47 AM | PERMALINK

In law school and in Continuing Legal Education Seminar, the accepted wisdom is:
You can't win a case at oral argument, but you an certainly lose one.

Prior to the oral argument, the Court has been given bench memoranda, written by the clerks, which go through the issues and supposedly prepares the Justice for the argument. The bench memoranda may state the preferred outcome. After oral argument, the justices supposedly take a vote and the CJ assigns the opinion to one of the people who was in the majority. But as the majority opinion and dissents circulate among the justices, opinions have been known to change - and the change may have been prompted by something said at oral argument.

Posted by: gersten on February 28, 2008 at 7:48 AM | PERMALINK

"Papist" has a whole history going back hundreds of years as a highly descriptive epithet with all sorts of implications that every educated person will understand. "Zionist" does not.
Posted by: Anon

Yes, as a derogatory term for "Catholic." If you want to insult Scalia, choose another term.

Posted by: DJ on February 28, 2008 at 7:52 AM | PERMALINK

The oral argument, for better or worse, whether this is the way the system was intended to work or not, is the only chance the lawyer gets to have his or her opinion presented to the justices absent mediating (often pernicious) influence of the 'clerks'. Further, it is a chance to ascertain whether or not the judge has, indeed, actually READ the material submitted, briefs, motions, amicus briefs, and so forth. Don't ever assume that the justices have read the material. Especially, when you get down to the lower courts.

Posted by: on February 28, 2008 at 8:01 AM | PERMALINK

Why should he speak? Nino is going to tell him how to vote anyway, so why should he even pretend to pay attention.

Posted by: CN on February 28, 2008 at 8:03 AM | PERMALINK

I find the "papist" remark about Scalia to be odd. All the conservative justices are Catholics so why just single out Scalia?
By the way, I also find it odd that all of the majority on the Supreme Court are from the same religion. Catholics are not even the majority of Christians, let alone Americans. I am from a large Irish Catholic family but find this troubling.
As for oral arguments, they also help the public get a sense of what is at stake. Too bad they are not televised.

Posted by: BernieO on February 28, 2008 at 8:45 AM | PERMALINK

Or maybe he never really fit in, largely because he was never qualified to sit there in the first place. Being reliably partisan means never having to care about what takes place since pre-knowing exactly how to vote on those partisan issues, is Thomas's only prerequisite to sitting there to begin with. hence ogling the ceiling pays the same as feigned interest.

Isn't that really the only qualifications Chief Justice Robert’s had to have too? Why of course it is, since the 4 right-wing members of the court never, ever seem to had a opinion otherwise.


Posted by: me-again on February 28, 2008 at 8:46 AM | PERMALINK

mattski: I'd say there's some real ennui issues there.

I was thinking precisely the same thing.

Posted by: shortstop on February 28, 2008 at 9:19 AM | PERMALINK

Re-read that comment carefully. While it might be understandable for him not to comment at, say, a partial-birth abortion hearing, his silence on every single issue before the court -- including issues of extraordinary complexity that have perplexed lawyers for decades -- is damning.

I've argued before appellate courts before: there's a lot of merit in oral argument on non-political (i.e., the vast majority of) cases. Frequently, judges/justices will do their best to draw blood from the side with which they *agree*, just to see how well the theory really holds up. Just as importantly, there are substantial word limits in appellate courts and, as I'm sure you'll agree, there are situations where a conversation can go into much more depth than the limited brief-response-reply-reply allowed on paper. Even more importantly, law is hard. Appellate law is harder, and time-intensive. Oral argument helps the Court understand what's going on far better than briefs, since it allows questions and answers.

If a justice never has a question about anything, I can only assume (1) he's so arrogant that he thinks he understands everything perfectly or (2) he doesn't care if he understands anything or not. Neither speaks well of the silent justice.

Posted by: M on February 28, 2008 at 9:30 AM | PERMALINK

I disagree with Thomas's legal reasoning and his whole approach to the law about 90% of the time, but observing rather than participating in oral arguments is his prerogative. Whatever his reasoning is--maybe he doesn't see the value in oral arguments, or maybe he trusts the other eight justices to ask the right questions--I'm not sure that I'm positioned to accuse him of laziness or anything. Liberals can find plenty to object to in his *opinions*, so taking him to task for his "Sphinx" reputation just seems, well, lazy. And I'll say to Thomas' credit that when he actually did speak up during the Virginia cross-burning case a few years back--where, despite his conservative/libertarian ideology, he came out in favor of the state's ban on the practice--the effect was thunderous and very moving precisely because of his usual silence.

Posted by: sphodros on February 28, 2008 at 9:42 AM | PERMALINK

Aren't Scalia, Thomas, Kennedy, Alito, and Roberts all Catholic?

Posted by: Jeffrey Davis on February 28, 2008 at 9:44 AM | PERMALINK

Thank you, DJ and Old Hat. Perhaps when Anon refers to "every educated person," he or she means "every educated person without access to a dictionary or the slightest clue about correct usage, and with limited, at best, knowledge of world affairs."

http://dictionary.reference.com/browse/papist

EVERY major dictionary refers to the term as derogatory or offensive.

"Papist" is also one of Ian Paisley's term of choice for Catholics; he freely alternates "papist" with his other favorite, "the Pope's streetwalkers." Papist is pretty much the term of choice for anti-Catholics; both Al Smith and JFK had it hurled at them regularly, and the Bob Jones University types still use it to refer to Catholics generally.

In fact, papist is worse than Zionist, as the latter, while often used in a derogatory way, has no derogatory meaning on its face:

http://dictionary.reference.com/browse/zionist

Posted by: sullijan on February 28, 2008 at 9:47 AM | PERMALINK

As a former staff attorney for a state appellate court, I can tell you that our judges usually had a draft of the opinion ready to go before oral argument even begins, based on the written briefs. After argument, the draft would usually undergo a few small tweaks and revisions and then be released about a week after agruments. It was very rare for argument to actually change the outcome of a case, although it was known to happen every once in a blue moon.

Posted by: Pocket Rocket on February 28, 2008 at 9:47 AM | PERMALINK

Granted that oral arguments don't have much of a legal impact, they are certainly still a powerful rhetorical device. Justices can shape public opinion and prepare a national audience to accept their written opinions. Rhetoric is not hollow and meaningless, and a refusal to engage in rhetoric is a curious activity for a public figure. It's like a Senator who never gives a speech because heck, he always votes and listening to Senate debate never changed his mind one way or the other.

Posted by: Tim Morris on February 28, 2008 at 9:54 AM | PERMALINK

Liberals can find plenty to object to in his *opinions*, so taking him to task for his "Sphinx" reputation just seems, well, lazy.

I don't see why it needs to be one or the other. After all, people criticizing him for his catatonic state ("sphinx" is a bit too complimentary under the circumstances, I think) aren't saying that they're nevertheless impressed by his opinions.

Posted by: shortstop on February 28, 2008 at 9:54 AM | PERMALINK

In other words, oral arguments are merely an opportunity for grandstanding by both the Justices, who let their political leanings spill out, and the lawyers who are advocating for their clients not just with the court, but the general public, hoping to engender some sympathy for their argument.

Posted by: Quinn on February 28, 2008 at 9:55 AM | PERMALINK

Well, I wouldn't characterize public rhetoric as "grandstanding," at least not always. "Grandstanding" is done by people who aren't involved; they're up in the peanut gallery drawing attention away from the event. Justices are explaining their thinking to the public, which is an important thing to do in a free country.

Posted by: Tim Morris on February 28, 2008 at 10:00 AM | PERMALINK

Naah, Kevin. Take a look at this essay by Lawrence Lessig - he expresses regret that had he argued in a different manner, had he taken note of the opening that Anthony Kennedy gave him, he could have won Eldred vs Ashcroft (the copyright case, with Lessig arguing against the renewal of copyright from 50 to 70 years):

To put it into perspective, take a look at the actual oral arguments of the case -- I think Lessig was right on this. The Administration's arguments were so ad hoc that its very possible that the justices could have taken Lessig's side.

Posted by: scritic on February 28, 2008 at 10:04 AM | PERMALINK

Thomas' fellow judges were on to his game. Rehnquist once said the main reason he opposed televising SCOTUS proceedings was because Clarence Thomas wouldn't bother showing up at all.
\

Posted by: Joshua Norton on February 28, 2008 at 10:11 AM | PERMALINK

Kevin, your attitude and that of the article you cite have a kind of "Being There" quality. You interpret Chauncey's -- oops, I mean Clarence's -- silence as some sort of quiet wisdom, a wry commentary on the sound and fury around him, when in reality, he simply has nothing to offer. As long as he can grab Scalia's opinion afterward, and then run the Xerox machine, his job is done.

Posted by: sullijan on February 28, 2008 at 10:12 AM | PERMALINK

*

Posted by: mhr on February 28, 2008 at 10:19 AM | PERMALINK

"an African-American is not considered authentic unless he is a leftwinger."

You're the one playing the race card. Racist heal thyself.

Posted by: Norman Main on February 28, 2008 at 10:22 AM | PERMALINK

The problem I find with Scalia is that his arguments and opinions are not firmly based on constitutional law and legal precedent but colored by the morality of his Catholicism. He is smart enough to make the law bend to support his moral sense, hence papist as a quick and easy appellation? The same goes for Thomas and his personal experience of affirmative action. I read one of his opinions years ago in a discrimination case and logic really seemed to be turned on its head. It was an argument with so many holes it looked like swiss cheese. It's hard to find anyone without a handful of biases but it seems to me that should be the goal in choosing a SC justice, at least in terms of strong beliefs, e.g. religion.

Posted by: nepeta on February 28, 2008 at 10:24 AM | PERMALINK

Scalia = Jay
Thomas = Silent Bob

Posted by: on February 28, 2008 at 10:26 AM | PERMALINK

Scalia = Jay
Thomas = Silent Bob

(apologies for the double-post)

Posted by: Jeremy B. on February 28, 2008 at 10:27 AM | PERMALINK

Thomas couldn't figure out Al's head is a ham hock if he took a bite out of it.

Posted by: iloveAL on February 28, 2008 at 10:29 AM | PERMALINK

" Justices are explaining their thinking to the public, which is an important thing to do in a free country." - Tim Johnson

I agree. The oral arguments are often more understandable to me than the written opinions.

Posted by: nepeta on February 28, 2008 at 10:33 AM | PERMALINK

finally

" blood sport, sort of like frat hazing but for grown men and women"

for years i have wondered that no one commented the manner in which supreme court oral arguments are conducted

i would add another word - unprofessional

what prevents lawyers from speaking up

people in the legal community must have views about the way the justices conduct themselves

Posted by: jamzo on February 28, 2008 at 10:35 AM | PERMALINK

Oops, the author of that quote at 10:33 is Tim Morris, not Johnson.

Posted by: nepeta on February 28, 2008 at 10:35 AM | PERMALINK

Yes, papist is a "quick and easy appelation." So is ni--er. So is k-ke.

Nowhere will you find, in any dictionary, that papist means "someone informed [even overly or inappropriately so, in the opinion of some] by his or her Catholicism." It's a derogatory term, period. Some people may use it with no malice intended, just as your grandparents might unthinkingly use racial or ethnic slurs not because they hate anyone but because it used to be acceptable, but that doesn't change the fact that the actual objective meaning of the word is derogatory and offensive.

Posted by: sullijan on February 28, 2008 at 10:37 AM | PERMALINK

I am no fan of Justice Thomas, and I still bristle when I recall GHWB's lie that then-Judge Thomas was the best legal mind he could find. But let's get real. Graduating law school may not require a great mind, but it is not usually something a moron can do. Thomas graduated from one of the top law schools, and I have never seen an allegation that he did not earn his diploma. He survived his term at EEOC with enough of a reputation to allow his appointment to the Appellate Court and apparently was not regarded with disdain there. Those of his opinions I read in law school, while no doubt largely written by clerks, were, however much I may have disagreed with them, clear and often interesting. I do suspect he is less intelligent and legally accomplished than his colleagues, but he is certainly not stupid. His silence on the bench may reflect a lot of things, including laziness, but certainly not stupidity, and probably not a lack of preparation either.

Posted by: Bob on February 28, 2008 at 10:38 AM | PERMALINK

Frankly, I think Mr. Thomas misses the point. Oral arguments seem to me to be about asking the people's questions of the parties. The justices need to get each party to speak their real agenda in a public forum on the record for all to hear. This is our highest court, we all deserve to hear and understand what is really being asked of the court. I find the oral arguments bring this out in layperson's language. I love to listen to these. The justices to do this well are actually providing service to their country that were appointed to provide.

Thus, Mr. Thomas is a dolt as he is either too stupid to understand this to does not care

Posted by: George on February 28, 2008 at 10:41 AM | PERMALINK

"It's a derogatory term, period."

Boo freaking Hoo. Scalia is a frothing supporter of and recruiter for Opus Dei - which is the pope's personal pep squad. He's about as "papist" as one can get.

Deal with it. Or not. I don't really care. Your offended sensibilities are really no concern of mine.

Posted by: Czarcastic on February 28, 2008 at 10:43 AM | PERMALINK

I think a lawyer can more easily lose - rather than win - a case on oral argument. But this is all overly simplistic. It's not a football game. The way the opinions are written makes an enormous difference and oral arguments are opportunities for judges/justices to talk through different lines of reasoning.

An overly-simplistic example: is a particular death penalty sentence going to be overturned because of a particular failing in that defendant's trial, or is there something more systemic that will affect other death row inmates?

By failing to participate in oral arguments, Justice Thomas abdicates his role in developing the Court's reasoning for opinions he does not directly participate in. He's not just a zero in this regard: he occupies a chair that could seat someone willing to do his or her job.

The sad part, is that Justice Thomas is not terribly happy in his job.

Posted by: Joe on February 28, 2008 at 10:45 AM | PERMALINK

Czarcastic: And bigots are no concern of mine. Google "papist" and see what kind of drivel you find. You'll fit right in.

Posted by: sullijan on February 28, 2008 at 10:45 AM | PERMALINK

sullijan - Well, it's not a word I've ever used before today. It seems strange to me that it is derogatory but I'll take your word for it.

Posted by: nepeta on February 28, 2008 at 10:47 AM | PERMALINK

Maybe Thomas is still trying to figure out who put the pubic hair on his coke.

Posted by: AJ on February 28, 2008 at 10:49 AM | PERMALINK

"It seems strange to me that it is derogatory but I'll take your word for it."

Go right ahead - if you want to surrender control of your life based on the arbitrary whims of what others tell you to do.

Posted by: Czarcastic on February 28, 2008 at 10:50 AM | PERMALINK

nepeta: Mercifully, it's a word you don't see in intelligent discourse -- if you've never heard it, you obviously travel in good company; but don't take my word for it, take Webster's, or American Heritage's...

Or google it and look at the kind of wackjobs who use it. Pretty much every reference you'll find is either an article or quote by a wacko, or someone discussing such an article or quote.

Posted by: sullijan on February 28, 2008 at 10:53 AM | PERMALINK

If a SCOTUS case is decided before hearing arguments, and justices are convinced enough of the facts of the case that they don't see the need to ask questions, we're in much worse shape than I thought. And I think we're in pretty bad shape.

Shame on you, Kevin, for giving ThomASS a pass. He is a mental midget who refuses to see any side of an argument other than the one he has pre-determined. He deserves no praise nor understanding, only scorn.

Posted by: MeLoseBrain? on February 28, 2008 at 10:57 AM | PERMALINK

Thomas was grossly unqualified to be nominated to the Supreme Court in the first place. He had no experience in Constitutional Law, other than the basic course required of all freshmen in law school. He is nothing but an incompetent pervert who was appointed to the EEOC because of the melanin under his skin and spent most of his time there trying to seduce women like Anita Hill with his crude jokes and obscene comments. Two other women later came forward with similar charges.

Bush the Elder appointed this unqualified deviant to make it appear like he was so enlightened to nominate a black man, when all he wanted was a mindless shill who would not question any bad case that appeared before the Court, like Bush v. Gore in December 2000. I'm sure the Bush family is well pleased with this sick numbskull - but the rest of the United States has been sorely diminished as a result.

Posted by: The Conservative Deflator on February 28, 2008 at 11:00 AM | PERMALINK

"other than the one he has pre-determined."

I think even here you give him too much credit inferring that he actually puts any thought into the process. He just asks Scalia his opinion and says "me too".

Posted by: Joshua Norton on February 28, 2008 at 11:01 AM | PERMALINK

sullijan - Well, the word has a long history. There's a good wiki on 'papist' with an interesting discussion board.

Papist Wiki

Posted by: nepeta on February 28, 2008 at 11:02 AM | PERMALINK

I have no idea why Justice Thomas doesn't ask questions, and any theories I have would be pure speculation. Newspaper articles full of speculation about why he doesn't ask questions are worse than useless.
That said, no one would think it a story if Thomas simply asked FAR FEWER questions than everyone else. (In my view, which I will shamelessly renounce if I ever argue before them, Justices Scalia and Breyer overdo the questioning, but that's just me.) Still, it seems newsworthy to me that he has asked NO QUESTIONS AT ALL for about two years. Even if there is nothing wrong with that, it is sufficiently odd to be a real, if small, story, just as if he wore a pink bow tie every time the Court sat.

Posted by: CJColucci on February 28, 2008 at 11:13 AM | PERMALINK

Wow, Kevin--that's some update. Someone from Bush's Office of the Solicitor General says oral arguments don't matter!!!! Well, that proves it, because:
1) Someone from the Bush Administration wouldn't lie,
2) it isn't possible that he has heard of the issue with Thomas before, although the rest of the world has, and
3) the Administration doesn't try to protect its powerful allies from criticism.

Posted by: calling all toasters on February 28, 2008 at 11:15 AM | PERMALINK

nepeta: Yup, and there's the word "disparaging" right there in the first sentence.

It sums up with, "The term – and the related words "popery", "papistry" and "popish" – is still used occasionally today as a slur by some anti-Catholic writers and preachers."

In between, all the references are neutral at best, but still mostly negative, involving exclusion, suspicion, or both. And NOWHERE is it defined as someone whose views are defined by his or her faith.

And as for actual (as opposed to Wikpedia) definitions, every dictionary refers to the term as disparaging, derogatory or offensive.

Posted by: sullijan on February 28, 2008 at 11:16 AM | PERMALINK

Scalia = Jay
Thomas = Silent Bob

It's funny 'cause it's true.

Posted by: Dr. Morpheus on February 28, 2008 at 11:19 AM | PERMALINK

"Go right ahead - if you want to surrender control of your life based on the arbitrary whims of what others tell you to do."

Czarcastic - Thanks for the smile.

Posted by: nepeta on February 28, 2008 at 11:22 AM | PERMALINK

Sadly, the two-headed monster that was Scalia-Thomas now has two extra heads: Roberts and Alito. It makes me want to send massive shipments of multivitamins to Justice Stevens.

Posted by: sullijan on February 28, 2008 at 11:27 AM | PERMALINK

"disparaging, derogatory or offensive."

Well then it's more than appropriate because everything about Scalia IS disparaging derogatory or offensive. Since he's sworn exclusive allegiance to the head of a foreign country I'm not even sure if he's an American.

And quite trying to hijack the thread. This is a discussion about Thomas - not about how offended you are to be a Catholic.

Posted by: Czarcastic on February 28, 2008 at 11:29 AM | PERMALINK

Has anyone peeked to see if he's got a PSP under the desk...?

Just curious.

Posted by: Ally on February 28, 2008 at 11:29 AM | PERMALINK

sullijan,

Agreed. It does seem to have had a nondesultory usage back in the 1500's. In any case, it's good to know that it's derogatory in its usage today.

Posted by: nepeta on February 28, 2008 at 11:33 AM | PERMALINK

I had an opportunity to meet Clarence Thomas last year after oral argument. He talked about this very issue and was candid in his explanation that he doesn't ask questions because he has already decided how he is going to rule based on the briefs.

He also made disparaging comments about his colleagues' habit of grandstanding and using the bench to throw around a bunch of one-liners. Interestingly, the only justice to have done so that day was Scalia. I don't think they are as connected at the hip as most would like to believe.

I don't agree with Thomas' reasoning most of the time, but all of the talk of him being unqualified is ridiculous. He is certainly a capable jurist.

Posted by: Nobody on February 28, 2008 at 11:42 AM | PERMALINK

Czarcastic: Maybe you should "quite" trying to hijack the thread. You are the ONLY one who hasn't made a single comment about Thomas...

You also need to take a logic class. Oh, and your meds. Lots of 'em.

Posted by: sullijan on February 28, 2008 at 11:47 AM | PERMALINK

Considering how obsessed the Bushies are with making the less-than-gifted appear informed and intelligent, I'm surprised they haven't set Thomas up with the kind of headphone gizmo that Bush uses for press conferences and debates.

Posted by: sullijan on February 28, 2008 at 11:54 AM | PERMALINK
As near as I can tell, oral arguments before the Supreme Court are treated primarily as blood sport, sort of like frat hazing but for grown men and women.

Um, no.

Oral arguments before the Supreme Court are treated as an opportunity for the Justices to probe counsel and elicit their arguments on points that may be important in the Court's own deliberations on the case.

The putative point of the proceedings — i.e., presentation of a legal argument — is never allowed to take unfold in anything like a judicious manner, and the lawyers' arguments are entirely contained in their briefs anyway.

The putative point of the proceedings is not "presentation of legal argument", a purpose which, as you note, is pretty much served by the briefs. The purpose of the proceedings is to provide the members of the Court the opportunity to interact with counsel for the parties in the case, who are (at least, this is the entire premise of our case-or-controversy based legal system which disdains advisory opinions and the like) the best advocates on the issues to address the legal concerns the Justices may have that may not be fully covered in the briefs. While the interchange of filings between the parties makes it unlikely that the parties will fail to engage each other, oral argument provides the opportunity to assure that they their arguments aren't talking past the Court, and to minimize the extent to which, in the Court's deliberations, members of the Court with differing views are forced to address legal nuances that aren't covered in the parties' arguments without the benefit of the strongest arguments from the interested parties.

Frankly, I'd be surprised if any justice ever has changed his or her mind about a case based on the questions they ask during oral arguments.

I wouldn't. I'd be surprised if Thomas has changed his mind based on anything that has ever happened at oral arguments, but then, I'd be surprised if Thomas opinion on any legal question was affected by the briefs, either, or by anything other than partisan and ideological predisposition.

Posted by: cmdicely on February 28, 2008 at 11:56 AM | PERMALINK
"Papist" has a whole history going back hundreds of years as a highly descriptive epithet with all sorts of implications that every educated person will understand.

Yeah, it was (and AFAIK remains, though the last I saw it in this role was in a leaflet distributed in 1990 by members of Caltech's Campus Crusade for Christ) the derogatory term of choice by, among others, Protestants pushing anti-Catholic bigotry. It's essentially a religious analog of "nigger", and about equally offensive.

Posted by: cmdicely on February 28, 2008 at 12:00 PM | PERMALINK

[Thomas] talked about this very issue and was candid in his explanation that he doesn't ask questions because he has already decided how he is going to rule based on the briefs.

Well, that's fairly damning. Briefs can differ markedly in quality, clarity and thoroughness. For Thomas to maintain that questioning is never necessary is simply ridiculous.

Posted by: shortstop on February 28, 2008 at 12:05 PM | PERMALINK

Justices (which is to say their clerks) have already made up their minds by the time oral arguments are made. It is a pretty pointless exercise. Posted by: Old Hat

This may be the case, and because most people never bother to read the written opinions when the decision is handed down, I like to hear the oral arguments because they show either how lame or strong the respective cases for and against may be, and they almost never fail to show the personal (usually cracked) right wing leanings of the assholes Scalia, Alito and Roberts, the latter showing time and again that clearly, like Thomas, he is woefully underqualified to be on the SC, let alone Chief Justice. One can only hope he likes salty fatty foods.

Posted by: Jeff II on February 28, 2008 at 12:06 PM | PERMALINK

I do suspect he is less intelligent and legally accomplished than his colleagues, but he is certainly not stupid. His silence on the bench may reflect a lot of things, including laziness, but certainly not stupidity, and probably not a lack of preparation either.

Unfortunately, "not actively stupid" is really not sufficient qualification to sit on the highest court on the land. In order to be a Supreme Court Justice, to occupy the seat once held by the likes of Louis Brandeis, Oliver Wendell Holmes, Thurgood Marshall, etc. etc. "actively brilliant" would be, one would hope, the lowest bar to entry one should have to clear.

Posted by: Stefan on February 28, 2008 at 12:14 PM | PERMALINK

144 cases? That's gross!

Posted by: Ralph Kramden on February 28, 2008 at 12:17 PM | PERMALINK

Jeesus, KD, when you're wrong you're pretty spectacular about it.

Thomas' silence could be due to a lot of things (seething resentment, indifference, incompetence) but in no way can it be interpreted as enlightened detachment. He's at the pinnacle of power in this country, and he can't even muster one question to establish the viability of his opinions.

He really is, as Sen. Reid said, an embarrassment.

Posted by: Uli Kunkel on February 28, 2008 at 12:19 PM | PERMALINK

I'm a lawyer and I've actually done oral arguments before an appellate court -- not the Supreme Court, but the D.C. Court of Appeals, which is the highest court here in D.C. (rough equivalent of a state supreme court).

My experience is that oral argument is not a meaningless rehash, but can actually contribute significantly to a judge's understanding and opinion on the case, and therefore serves a much different, but equally important, purpose than a brief. Though briefs are effective, oral arguments give judges the chance to ask the lawyers questions to summarize their case, provide further details or evidence, or discuss the legal or policy consequences of their positions. It's not just a recitation of the brief, but a critical chance for a lawyer to engage in a dialogue with the court about your your argument. As an example, the first piece of advice every appellate advocate gets is "Don't just read your brief." The point is this: oral argument are intended to make new points and explain your position -- if all you're doing is telling the court what you already said in your brief, then you should sit down.

On a personal note, I'm a little disturbed by a number of the comments that take the position this is all just political theater, or judges showing off. There is always an overlay of politics in law, especially at the Supreme Court, and good advocacy is always theatrical (ask any trial advocate), but this is the legal system and there are good reasons why we want to do it this way. If you claim to have respect for the rule of law, then you have to accept -- at least as a starting point -- that this is the way the law works.

Posted by: BK on February 28, 2008 at 12:21 PM | PERMALINK

Graduating law school may not require a great mind, but it is not usually something a moron can do. Thomas graduated from one of the top law schools, and I have never seen an allegation that he did not earn his diploma. He survived his term at EEOC with enough of a reputation to allow his appointment to the Appellate Court and apparently was not regarded with disdain there. Those of his opinions I read in law school, while no doubt largely written by clerks, were, however much I may have disagreed with them, clear and often interesting.

"Not..a moron." "Survived his term." "Enough of a reputation." Not "regarded with disdain." "Often interesting."

This is, I believe, called damning with faint praise.....

Posted by: Stefan on February 28, 2008 at 12:22 PM | PERMALINK
Well, that's fairly damning. Briefs can differ markedly in quality, clarity and thoroughness. For Thomas to maintain that questioning is never necessary is simply ridiculous.

Well, its not that ridiculous to think that questioning (or, for that matter, a pulse) is superfluous if your goal is to produce the quality of opinions that Thomas puts out.


Posted by: cmdicely on February 28, 2008 at 12:33 PM | PERMALINK

On a personal note, I'm a little disturbed by a number of the comments that take the position this is all just political theater, or judges showing off. Posted by: BK

No grease paint, fright wigs and floppy shoes are the only thing that distinguish Thomas, Scalia, Alito and Roberts from honest, hard working circus performers.

Posted by: Jeff II on February 28, 2008 at 12:35 PM | PERMALINK

"'Not..a moron." "Survived his term." "Enough of a reputation." Not "regarded with disdain." "Often interesting."

"This is, I believe, called damning with faint praise....."

Well, as I also said, I am not a fan of Justice Thomas. Not at all. But I object to the characterizations of him as moronic. There are many negative characterizations of him with which I might heartily agree.

Posted by: Bob on February 28, 2008 at 12:39 PM | PERMALINK

Given he was once a bit of a porn aficionado, I have always been disappointed with Clancy that he hasn't been a stronger supporter of first amendment rights.

Posted by: fafner1 on February 28, 2008 at 1:13 PM | PERMALINK

Clarence Thomas speaks not because he knows not.

The two thing going through his mind is what a great gig he's got and recalling various scenes from "Long Dong Silver."

Posted by: Thomas for McCain's Veep on February 28, 2008 at 1:30 PM | PERMALINK

Well, as I also said, I am not a fan of Justice Thomas. Not at all. But I object to the characterizations of him as moronic. There are many negative characterizations of him with which I might heartily agree.

Standards can vary depending on one's circumstances. By the standards of the general population, Thomas is not a moron. By the standards of his various peer groups -- the Supreme Court, the federal appellate bench, graduates of Yale Law School -- Thomas, while perhaps not actively a moron, is certainly embarrasingly below par and actively undistinguished, and hence unqualified for the august position he holds and deserving of the mockery for the joke he makes of his position.

Posted by: Stefan on February 28, 2008 at 1:47 PM | PERMALINK

Justice Thomas's reticence at oral argument follows in the footsteps of Justice Marshall, who rarely asked questions at oral argument.

So ask yourself this question: Why does the media, and why do most of you, seem to think it's a big deal that Justice Thomas doesn't ask questions but it was no big deal when Justice Marshall didn't ask any questions?

If you want to judge the quality of a justice's mind, read his opinions. That's a far better clue to how well he understands the issues than any question he might ask at argument.

Justice Thomas has by now produced a substantial body of written work. If you want to criticize him, then read his opinions and criticize his reasoning and his writing. Otherwise you are just making fools of yourselves.

Posted by: DBL on February 28, 2008 at 1:53 PM | PERMALINK
...Thomas, while perhaps not actively a moron...

Well, yeah, his involvement in oral arguments (or lack thereof) suggest "passively" is more the case than "actively" whatever he is.

Posted by: cmdicely on February 28, 2008 at 1:56 PM | PERMALINK

Just to anticipate one of your objections, I should point out that Justice Marshall's opinions were almost entirely written by his clerks. You can tell this by their academic, law reviewish quality and the the volume of footnotes (and I know it from talking to several of his former clerks).

I haven't talked to any of Justice Thomas's clerks and so don't know how much of a role they play in writing his opinions.

Posted by: DBL on February 28, 2008 at 2:00 PM | PERMALINK

Has anyone peeked to see if he's got a PSP under the desk...?

Just curious.

PSP == PeniS Pump?

Posted by: jerry on February 28, 2008 at 2:02 PM | PERMALINK

"but it was no big deal when Justice Marshall didn't ask any questions?"

Oh please. In your racist Disneyland both men are equally qualified based on their skin color?

Marshall had already established his bona fides by arguing such cases as "Brown v. Board of Education of Topeka, Kansas" and has become one of the most revered Supreme Court Justices in American history.

Thomas is a political hack - a little known Republican judge from Savannah, Georgia. At the time of his nomination, Clarence Thomas had been a federal judge for only 18 months. Despite his lack of judicial experience and because he had served the Republican Party well in the Department of Education and in the Equal Employment Opportunity Commission, he was rewarded for it by Bush Sr.

No valid comparison what so ever.

Posted by: Joshua Norton on February 28, 2008 at 2:35 PM | PERMALINK

Mr. Norton,

Let me get this straight. The fact that Justice Marshall rarely asked questions at oral argument and let his clerks write his opinions for him with little input from him besides telling them how it should come out, that's no big deal because he was in his youth a famous lawyer.

But Justice Thomas is a crappy justice because he doesn't ask questions at oral argument, and who cares whether his opinions are well reasoned or well written?

Forgive me for translating your comments as follows: Justice Marshall was a great justice because he was very liberal, and Justice Marshall is a crappy justice because he is very conservative. Have I missed anything?

Posted by: DBL on February 28, 2008 at 2:49 PM | PERMALINK

"Have I missed anything?"

You've missed damned near everything and are just playing your little passive-aggressive games.

Thomas hates his job, according to his own words from an address at Chapman University:

“There’s not much that entices about the job,” Thomas said, answering questions from the public that provided a rare glimpse of the man behind the office. “There’s no money in it, no privacy, no big houses, and from an ego standpoint, it does nothing for me.”

Marshall ended school segregation.

In 1994, Thomas performed, at his home, the wedding ceremony for Rush Limbaugh’s third marriage. I think this may be about the most significant thing he’s accomplished.

Posted by: on February 28, 2008 at 2:59 PM | PERMALINK

I think the notion Thomas seems to hold - that he already knows everything he needs to know about whatever case is in front of him, and can't possibly learn more - makes him just like George Bush: a functional moron.

Posted by: F. Frederson on February 28, 2008 at 3:02 PM | PERMALINK

Mr. Norton,

You still have not commented on even a single opinion authored by Justice Thomas. Have you ever read one? How can you possibly criticize him as a justice if you haven't read any of his opinions? Or is your view based solely on his reputation as a conservative justice?

My only point above was that the double standard applied to Justices Thomas and Marshall reflected the fact that one was conservative and the other liberal, and I'm afraid you've only proven the point.

Posted by: DBL on February 28, 2008 at 3:09 PM | PERMALINK

I think that Thomas misses the point. Oral argument is not about the lawyers winning the case. It's about the judges being able to talk to *each other* in a format particularly adapted to permit them to do so. With good judges, the lawyers are just instruments in a debate the judges have amongst themselves. It's no surprise, I suppose, that Thomas doesn't play much of a role in that debate.

Secondly, Thomas often comes out with dissents that rely on arguments and ideas that have not been discussed in the briefs or before the court. In my view, to the extent he believes they have merit, he should try them out in public first.

Posted by: christor on February 28, 2008 at 3:11 PM | PERMALINK

Just one more note. It's also true that lawyers waste enormous amounts of their clients' money preparing senior partners for oral argument - but this is more true at the state and court of appeals level. Most such cases are pretty much decided on the briefs - into which the senior partners had some editorial role but as to which their time, and hence billing, was modest. They go to extreme lengths to prepare for arguments, but that investment produces few returns other than in reputation terms for the partner him or herself.

Posted by: christor on February 28, 2008 at 3:15 PM | PERMALINK

"Have you ever read one?"

Uh, yes I have. Just as green wallpaper in law firms can cover lots of cracks, a couple of brilliant clerks can make the most mediocre of justices look smart. He was never qualified for the position to begin with , and he has proven it repeatedly with his mindless decisions and drivel.

Posted by: Joshua Norton on February 28, 2008 at 3:15 PM | PERMALINK

"How can you possibly criticize him as a justice if you haven't read any of his opinions?"

His lonely opinion in Hamdi v. Rumsfeld, that the President should be granted unlimited power whenever there exists a dubious state of armed conflict, is sufficient evidence of his deficiency.

Posted by: Uli Kunkel on February 28, 2008 at 3:26 PM | PERMALINK

"Justice Thomas's reticence at oral argument follows in the footsteps of Justice Marshall, who rarely asked questions at oral argument.

So ask yourself this question: Why does the media, and why do most of you, seem to think it's a big deal that Justice Thomas doesn't ask questions but it was no big deal when Justice Marshall didn't ask any questions?"


How did YOU find out about Justice Marshall's relative passivity (at least in his last years, when he was old and unwell) if the media didn't report it because of double standards? I knew about it too, and not from private sources of my own.

Posted by: CJColucci on February 28, 2008 at 4:14 PM | PERMALINK

I've met Clarence Thomas, and he's actually quite well spoken. His silence on the bench surely isn't due to the inability to come up with an intelligent question. (I say this as someone who often disagrees with his opinions.)

I have heard him say that he doesn't ask questions because he wants to give the lawyers a chance to make their arguments. He also thinks the other justices ask too many questions for that reason.

With respect to the effect of oral argument, I believe it can sometimes make a difference. Sometimes a judge will go into oral argument undecided, and may be swayed by something said at the argument. Other times the court may want to satisfy itself that the record supports the expected judgment, by giving counsel a chance to answer a question like: "Mr. Toad, is there anything in the record that supports your argument?" or, "Mr. Toad, what do you think is your best authority for that point?" And if you give a weak answer, they feel their suspicions are confirmed. And the Lessig article linked above suggests that one thing you can do at oral argument is convey to the court why it MATTERS whether you win or lose. That's sometimes harder to do on paper.

I have seen lawyers lose cases at oral argument. In one federal en banc argument I recall, a judge hostile to the plaintiff's position challenged him to stipulate to a fact. Another judge, more sympathetic, leaned forward and warned, "Don't do it!" Counsel took the bait anyway, and lost.

Posted by: The Fabulous Mr. Toad on February 28, 2008 at 4:34 PM | PERMALINK

Maybe Scalia doesn't have his hand far enough up Thomas' ass?

Posted by: SocraticGadfly on February 28, 2008 at 4:35 PM | PERMALINK

"Well, that's fairly damning. Briefs can differ markedly in quality, clarity and thoroughness. For Thomas to maintain that questioning is never necessary is simply ridiculous."

Not really. I have spent a total of three years working for appellate judges and can honestly say that there was not a single case that I felt oral argument was required for decision. In fact, the cases where it was most helpful was where the lawyers were terrible and submitted horrible briefs, something that almost never happens at the Supreme Court.

By the time a case gets to the Supreme Court, the issues have been so well-vetted that they could decide everything on the briefs and there would be no degredation in quality of the opinions.

Posted by: Nobody on February 28, 2008 at 11:39 PM | PERMALINK




 

 

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