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April 07, 2012 9:11 AM The Power of Clarence Thomas’s Silence

By Matthew Zeitlin

When the Affordable Care Act had its day in front of the Supreme Court, the “highlights” consisted of two things: the content of the questions the justices asked during the oral arguments, and the answers the respective litigators gave. And then there was the one anti-highlight: Clarence Thomas remained silent during in this case, matching a record of silence so persistent that a computer program that matches sound recordings of oral arguments with specific justices was unable to identify Thomas because they didn’t have a large enough sample of his voice.

And so, in a lecture given recently at the University of Kentucky, Thomas defended his silence and chided his fellow justices:

“We have a lifetime to go back in chambers and to argue with each other,” he said. “They have 30, 40 minutes per side for cases that are important to them and to the country. They should argue. That’s a part of the process….I don’t like to badger people. These are not children. The court traditionally did not do that. I have been there 20 years. I see no need for all of that. Most of that is in the briefs, and there are a few questions around the edges.”

What is interesting here is not that Thomas is more or less right on the substance — the Justices get thousands of pages of briefs, staffs of clerks to guide them through the material, and then often end up arguing with each other for only about 10 minutes on the most contentious cases. When justices have such clearly defined political, ideological, and jurisprudential commitments as our current Court does, this should not be at all surprising.

But what’s interesting is not only how Thomas is correct in seeing questions during oral arguments as largely pointless, his own silence has not at all impeded his own influence in the court. One of the more insightful parts of Jan Crawford Greenburg’s Supreme Conflict is her argument that Thomas is both an original and independent actor in the Court (i.e. not Scalia’s lackey), but that he’s been very influential among his fellow justices. She made this particular argument in a Wall Street Journal op-ed she wrote in 2007:

Consider a criminal case argued during Justice Thomas’s first week. It concerned a thief’s effort to get out of a Louisiana mental institution and the state’s desire to keep him there. Eight justices voted to side with the thief. Justice Thomas dissented, arguing that although it “may make eminent sense as a policy matter” to let the criminal out of the mental institution, nothing in the Constitution required “the states to conform to the policy preferences of federal judges.”

After he sent his dissenting opinion to the other justices, as is custom, Justices Rehnquist, Scalia and Kennedy changed their votes. The case ended up 5-4.

Justice Thomas’s dissents persuaded Justice Scalia to change his mind several times that year. Even in Hudson v. McMillan, the case that prompted the New York Times to infamously label Justice Thomas the “youngest, cruelest justice,” he was again, initially, the lone dissenter. Justice Scalia changed his vote after he read Justice Thomas’s dissent, which said a prison inmate beaten by guards had several options for redress—but not under the Eighth Amendment’s prohibition of “cruel and unusual punishment.”

From the beginning, Justice Thomas was an independent voice. His brutal confirmation hearings only enforced his autonomy, making him impervious to criticism from the media and liberal law professors. He’d told his story, and no one listened. From then on, he did not care what they said about him.

Clarence Thomas, for example, is the only justice who rarely asks questions at oral arguments. One reason is that he thinks his colleagues talk too much from the bench, and he prefers to let the lawyers explain their case with fewer interruptions. But his silence is sometimes interpreted as a lack of interest, and friends have begged him to ask a few questions to dispel those suggestions. He refuses to do it. “They have no credibility,” he says of critics. “I am free to live up to my oath.”

But the forcefulness and clarity of Justice Thomas’s views, coupled with wrongheaded depictions of him doing Justice Scalia’s bidding, created an internal dynamic that caused the court to make an unexpected turn in his first year. Justice O’Connor—who sought ideological balance—moved to the left. With the addition of Chief Justice John Roberts and Associate Justice Samuel Alito, the court now is poised to finally fulfill the hopes of the conservative movement. As George W. Bush told his legal advisers early in his presidency, he wanted justices in “the mold of Thomas and Scalia.” Interestingly, on President Bush’s marquee, Justice Thomas got top billing.

And as the Court might very well be on the verge of striking down a Democratic president’s expansive effort to regulate a key sector of the national economy and expand the social safety net, Thomas’s originalist-libertarian worldview might be at its most influential. And he barely had to say a word.

Comments

  • Rich on April 07, 2012 9:48 AM:

    Nice try, but basically he's a hack. Cases dealing with mental illness are among the most difficult to decide because very few people have training in law and psychiatry. Picking a dramatic example doesn't exactly establish the presence of a trend.

  • RMcD on April 07, 2012 10:12 AM:

    Can we PLEASE stop calling Thomas an "originalist" (or a "libertarian" for that matter)? He is not. His Social Darwinist, neo-confederate interpretation of the Constitution may restore the vicious and corrupt jurisprudence that dominated the Court from the late 1880s until the mid-1930s, giving us cases like Plessy and Lochner, but the Founding Fathers would be rolling over in their graves. Washington, Hamilton, Madison, Wilson, and co., were fervent nationalists and respecters of civil liberty. Thomas represents an inversion to and embarrassment of their legacy.

  • DAY on April 07, 2012 10:26 AM:

    The "Founders" did indeed create a nation, and- as RMcD says, "were fervent nationalists and respecters of civil liberty"

    Somewhere over the next 200 plus years that Grand Idea got sidetracked by small minds and narrow interests.

    "Intent" is a two edged sword.

  • Bo on April 07, 2012 10:36 AM:

    As George W. Bush told his legal advisers early in his presidency, he wanted justices in “the mold of Thomas and Scalia.”
    _________________________________________________

    I suppose that's why he nominated his numbskull White House Attorney, Harriet Meiers.

    I think GDumbya may have been misquoted. What he actually said was that he wanted "moldy Supreme Court justices", I suspect.

  • LL on April 07, 2012 10:44 AM:

    Thomas is a traitor to the essence of the American Experiment and he never should have been allowed onto the court. He was called out as a sexist creep and has been seeking vengeance ever since. I hold Bush Sr. in the deepest contempt for what he did to the country in nominating Thomas to the SCOTUS, if for nothing else.

    And then there are Dems like Biden who actually voted for the guy. I don't even have a word for them..beyond coward.

  • sick -n-effin-tired on April 07, 2012 11:03 AM:

    You Negros, Poor people and foreigners just move along I'm doing OK . I do what is best for MY people ...that's why they made me a judge

  • Danp on April 07, 2012 11:17 AM:

    The question shouldn't be whether the judges bloviate or not from the bench, but whether lawyers representing both sides should have the opportunity to address the court's concerns. Thomas obviously thinks the original briefs should be the end of their role. And that offends me.

  • Josef K on April 07, 2012 11:30 AM:

    You realize this means had already made up his mind back in late 2000 regarding Bush v. Gore, right?

    Kinda puts a lie to his being so open to being swayed by the facts and Briefs submitted.

    He could also do well to keep his wife from making more bizarre phone calls. He's already fighting the perception he's suffering dementia.

  • zandru on April 07, 2012 11:56 AM:

    "He’d told his story, and no one listened."

    Maybe in Thomas's own mind. In Reality-World© (a subsidiary of the Democratic Party), everyone heard Thomas's "story" and enough Senators accepted it that he's now on the Supreme Court. Most Justices would consider this to be a victory, a vindication, a happy ending.

    Thomas is "original" and this is somehow "good"? All I see is a hate-filled vindictive man who refuses to recognize all the advantages that Democrats have won for him and who works tirelessly to deny these same rights to everyone else.

    This article looks like a (dare I say it) whitewash.

  • joel hanes on April 07, 2012 12:28 PM:

    [W] nominated his ... White House Attorney, Harriet Meiers

    Pure repayment. Meiers was the Bush family fixer who scrubbed the Texas legal records of evidence of W..'s youthful misdeeds so that he could run for political office.

  • mishanti2 on April 07, 2012 1:07 PM:

    I am so sorry, but I await the news that he retired or died...neither can come too soon for most Americans.

  • Joe on April 07, 2012 2:03 PM:

    Thomas is a corrupt and misogynistic hack, but I respect his reasoning for being quiet during arguments. Good for him.

    Now if he would only apply that reasonableness to the rule of law.

    It's nice to be polite, but in this case, it's like a despot using the correct salad fork while giving orders to bomb civilians.

  • JM917 on April 07, 2012 2:07 PM:

    I have heard it said, but never definitively confirmed, that as a law student at Yale in the late 1960s Thomas was as silent as he is now on the bench, but that his politics were far-left and permeated by black power obsessions. In other words, since law school he has made an extreme shift from left to right.

    Does anyone here have anything to say on this score? Was his radical political shift motivated by opportunism (e.g., thinking that his career would go further and faster as a right-winger than following what he might have thought a "more predictable" left-wing path), by bitterness against his fellow blacks and against white liberals, by the repressive Catholicism and authoritarianism inculcated by his grandfather, or what?

    Is there some kind of a deep psychological mystery that explains Thomas, or is it simply a realization that he could profit personally from wrapping himself in ultra-conservative white ideology?

  • cwolf on April 07, 2012 5:42 PM:

    Does anyone really think that the spread of Thomas' simpleton view of the constitution among his intellectually challenged colleagues is surprising?

    Scalia doesn't even read the laws he strikes down.

  • John Herbison on April 07, 2012 5:52 PM:

    When I hear Justice Thomas referred to as an originalist, I usually imagine a hypothetical whereby Chief Justice Roberts, in his capacity as administrative head of the judicial branch, decides that the doctrine of original intent indicates that Bolling v. Sharpe, the case that determined that the Due Process Clause of the Fifth Amendment includes an Equal Protection guaranty applying to the federal government, was wrongly decided. (After all, the drafters of the Bill of Rights could hardly have had a problem with segregation of the races in the District of Columbia.) Roberts accordingly orders that, in federal court buildings in D.C., separate water fountains for whites and "coloreds" shall be installed.

    Would Justice Thomas then remain silent?

  • Boronx on April 07, 2012 7:07 PM:

    I don't get what's simple about ruling that being beaten by guards isn't cruel and unusual punishment. There's some twisted thinking that goes into denying that.

  • Doug on April 07, 2012 10:53 PM:

    Boronx, "cruel and unusual punishment" applies either to the law that sets out the punishment to be received after conviction of for particular criminal conviction or to the regulations instituted for the treatment of someone convicted of a crime while that person is serving their sentence.
    For the prisoner to have standing under the 8th Amendment, he would have to show that the prison REQUIRED guards to beat prisoners AS PART OF THE PRISONERS SENTENCE. Therefore, Thomas was, legally, correct.
    Justice Thomas is still an ass, though...

  • bob h on April 08, 2012 6:29 AM:

    "..the court now is poised to finally fulfill the hopes of the conservative movement."

    Which includes the ability to pull off another judicial coup d'etat, which is what Citizens United and HHS vs. Florida are all about.

    I do agree with Thomas about the other Justices talking too much, which in the case of HHS vs. Florida just revealed their lack of preparation and understanding.

  • John B. on April 08, 2012 8:48 AM:

    Let's hope Zeitlin's insipid defense of Clarence Thomas represents the nadir of "Political Animal." Things here could hardly get worse.

    Thomas is, as someone comments above, a "hack."More than that, he manifestly suffers from a serious neurosis. When the memoirs of other court personnel are finally published he will be exposed for the illiterate, historically ignorant misogynist he is.

    As for his studied silence on the bench, few of his former EEOC colleagues, appellate lawyers, or judges who have met and spoken with him up close have any doubt about the reason: he's stone stupid. Any effort he might make to engage the lawyers before him in court on substance of any issue would expose him to the ridicule he richly deserves.

    His law clerks save him from mortification, for now. When he's dead and buried their memoirs will erase what little reputation he has now.

  • mjb on April 08, 2012 12:14 PM:

    OMG, you people are unbelievable!

    Thomas is a very steady and "just" SCOTUS Justice. He analyses the information rather than grandstanding and so you call him a "hack".

    I think the lot of you whom say he is a "hack" are simply saying that because he does not subscribe to your brand of liberal political views.

    The reality is that because he does not go the way of the majority of blacks in his views, he automatically becomes a "hack" or worse.

    The FACT is that he sees the Constitution for what it is, the SUPREME LAW OF THE LAND. And ANY "law" that is contrary should be struck down, AS IT SHOULD BE!

    The Constitution is NOT a "living and breathing document". It is NOT open to "change". It is the BASIC FOUNDATION of our REPUBLIC!

    We are not a democracy, we are a Constitutional Republic that relies on checks and balances. The SCOTUS is ONE of those "checks & balances". Thomas is a breath of fresh air that allows for a free flow of ideas to be weighed against the Constitution. His silence on the bench only confirms this.

    If he was one that subscribed to the liberal ideology most of you would tout him as a "Great Justice", but because he is a Constitutionalist in his application, you bash him and call him a "hack".

    Open your minds to the possibility that the founders wanted people on the court that would hold to the Constitutional Principles the espoused, NOT someone who would be moved by every shift of the wind!

  • Bonnie on April 08, 2012 10:54 PM:

    Thomas is scumbag pervert and it was a disgrace for him to be on the Supreme Court. The SCOTUS is only as good as the people on the court. Right now, it is at its lowest point in history as an institution that should be respected but has such a group of dishonorable and partisan men on it. I have no respect for the Supreme Court as it stands today. It will take a lot to gain that respect again.

  • ET on April 09, 2012 11:00 AM:

    Interesting. I was talking to someone the other day who related a conversation he had with someone who used to clerk for Thomas that seems to echo this. Their opinion seemed to be that Thomas was silent on purpose with the inference that the Justices talk too much.

    I did find the following interesting because it seems that Scalia in particular, should heed it a bit more.

    'nothing in the Constitution required “the states to conform to the policy preferences of federal judges.” '