Clarence Thomas, five years mum

Sorry for the slight exaggeration in the title, but it was too hard to resist a catchy swipe at one of my least favorite justices. No, he hasn't been totally silent like a Trappist monk, but as New York Times Supreme Court analyst Adam Liptak put it:

A week from Tuesday, when the Supreme Court returns from its midwinter break and hears arguments in two criminal cases, it will have been five years since Justice Clarence Thomas has spoken during a court argument.

If he is true to form, Justice Thomas will spend the arguments as he always does: leaning back in his chair, staring at the ceiling, rubbing his eyes, whispering to Justice Stephen G. Breyer, consulting papers and looking a little irritated and a little bored. He will ask no questions.

Now, I do have to question the propriety of a reporter characterizing someone as "a little irritated and a little bored." However obvious that might seem to Liptak, it's not an objective description. Some people can't help their facial features. (In repose, my face looks habitually sullen. I am not always sullen, however. Most of the time, perhaps, but not always.)

Why does Thomas say nothing? He has claimed to be "self-conscious about the way he speaks," having been teased as a boy. He also has said that it is only common courtesy to listen when a lawyer is arguing before the court.

I'll give him a pass on the self-consciousness front, although having been on the Court as long as he has, he should realize that whatever anyone thinks of him, it has nothing to do with the way he speaks.

As for the common courtesy bit, it's a nice thought, but let's look at the big picture: by the time a case makes it to the Supreme Court, numerous briefs have been filed in, and numerous oral arguments have been made to, lower courts. The record is full of arguments and counterarguments, not to mention findings by federal judges. If a lawyer hasn't made his or her best arguments by then, he or she never will.

On the other hand, only the justices know exactly how a case landed on their docket. The Court only accepts cases that seem to present a controversy on which the Court must rule to provide guidance to lower courts. Sometimes the controversy is obvious, but even in those cases, not every Justice's perspective is. The only chance a lawyer has to persuade a Justice whose concerns have not been aired is at oral argument -- and even then, only if the Justice verbalizes his or her concerns.

Justice Thomas routinely issues sweeping concurrences and dissents addressing topics that had not come up at argument.

He asked no questions, for instance, in a 2007 case about high school students’ First Amendment rights. In a concurrence, he said he would have overturned the key precedent to rule that “the Constitution does not afford students a right to free speech in public schools.”

Neither side had advanced that position. The basis for and implications of his concurrence were not explored at the arguments, because, by asking no questions, Justice Thomas did not tip his hand.

I remember reading a one-paragraph concurrence written by Thomas concerning the legitimacy of a traffic stop during which drugs were found concealed in the vehicle. The majority opinion declared that drivers had no right to privacy in their vehicles, unlike their homes. Thomas's concurrence didn't actually agree with the majority's reasoning: in fact, he offhandedly remarked that were it in his power he would severely curtail the police's Fourth Amendment rights to search and seizure. This astonishing revelation was then followed by a one-sentence explanation that precedent bound him to uphold the majority's position anyway.

I don't know if Thomas made his Fourth Amendment views known at oral argument in that case. However, this casually tossed-off bombshell is emblematic of a communication style that is reticent to a fault. Any other Justice would have explained the reasoning at length, knowing it was a novel view that deserved some fleshing-out.

Thomas is almost Scalia's clone, to the point where some wags suggested the Court could save money by booting Thomas and giving Scalia two votes. However, Thomas has shown flashes of interesting perspectives and opinions. He just can't be persuaded, or perhaps bothered, to air them in ways that might alter the terms of the Court's debate. From where I stand, that might be a good thing -- I suspect Justice Thomas and I don't see eye-to-eye on a lot of issues, so to me it's just as well that he doesn't advocate his views with great vigor -- but it might well be good for the Court, and maybe even the country, if Thomas were less of a cipher.