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January 18, 2013 6:06 AM   Subscribe

I read that Justice Clarence Thomas made his first remarks ever after 7 years of silence during a Supreme Court session recently. I am curious as to why he stopped speaking during sessions. How does he or does he, ask any questions during a hearing? Does he pass his questions onto another justice? Is he an effective justice without speaking? I'm just curious, not a lawyer.
posted by lasamana to Law & Government (20 answers total) 8 users marked this as a favorite

Questions and answers are just the icing on the cake. When any appellate court convenes, the judges have already been provided with briefs filed by the parties, making their arguments and citing legal authority in detail. They have also (usually) reviewed the legal authorities on which the parties rely. Most appellate judges will confirm that they usually know what their decision will be by the time the parties make their oral arguments.

I had one panel once tell the attorneys how they intended to rule, and invite the losing party to explain why they should change their minds. That is decidedly unusual, though.
posted by yclipse at 6:13 AM on January 18, 2013 [2 favorites]

The is a well-covered issue. His take on things is that the oral arguments and questions are a lot of posturing and showboating by the lawyers and the justices and that the questions and responses don't actually add anything to the case: most of the "work" is in the pages and pages of briefs submitted to the court and the relevant arguments and questions after that are made between the justices in their chambers. He believes that the questions (and I think the oral arguments) don't really tell anyone anything they don't already know.

Another issue is that he has publicly admitted that he doesn't really like his job, so it's not as though he gets energized by the back-and-forth of legal jousting that goes on between the justices and the lawyers.
posted by deanc at 6:15 AM on January 18, 2013 [2 favorites]

There was a (critical) profile of Thomas in the New Yorker a while back which discusses his philosophy.
posted by faustdick at 6:15 AM on January 18, 2013 [5 favorites]

Thomas is notorious for thinking that oral arguments in Supreme Court cases are a waste of time. This is not an entirely unreasonable position, but it is somewhat unique.

Thing is, cases for which the Supreme Court grants certiorari are briefed at length and in detail. Briefs routinely run to dozens of pages. The justices are going to read those. There will also likely be at least a handful of amicus briefs, i.e., briefs submitted by interested third-parties. That's on top of the appellate court opinions, which the justices will read. Any case significant enough to merit a cert grant is likely to have a long opinion on the appellate level. They may or may not read the appellate briefs, but those are certainly available if desired. Further, the Court is not in the habit of granting cert on cases about issues that have not caused a "circuit split," i.e., the same issue has come out different ways in different courts. So they're probably going to wind up reading opinions from other cases on the same issue.

That's a lot of reading. And it's going to tell the justices most of what they need to know to decide the case. Justice Thomas apparently believes that this tells the justices pretty much all of what they need to know. Given that we're talking about hundreds of pages of legal writing, the odds that anything new let alone dispositive is going to come out in the 30-odd minutes each side is allowed in oral arguments is vanishingly low.

The other justices tend to believe that even if nothing new is going to come out, it's still an important part of the process.
posted by valkyryn at 6:16 AM on January 18, 2013 [13 favorites]

Whether he is an effective justice, I think, for most people, rests on the question of whether they view him favorably, not whether he speaks in court.

Ignoring his personal views and how those play into questions of effectiveness, I don't think you need to ask questions to be an effective Supreme Court justice. You need to read about the case, the arguments presented by each side, confer with your fellow justices regarding the court's decision, work with your staff if you're going to issue your own dissenting opinion, etc.
posted by dfriedman at 6:17 AM on January 18, 2013 [1 favorite]

He doesn't ask questions in oral argument, himself or through the other justices. I don't particularly like him, but this doesn't impact his ability to be an effective justice in terms of deciding cases (however, it has made a spectacle of the thing and drawn attention, which I view as unseemly).
posted by J. Wilson at 6:35 AM on January 18, 2013 [2 favorites]

Worth noting that there have been other pretty quiet justices in the past, and Thomas may only stick out so much because we have had such a verbose buch for the last 20+ years. Lots I don't like him for, but being introspective is not one of those things
posted by edgeways at 6:50 AM on January 18, 2013 [1 favorite]

From npr:
The justices each approach their work at the court quite differently. Thomas hasn't asked a question at oral argument in more than five years. He doesn't like the fast pace of questions to counsel, viewing it as "unnecessarily intense."

"I don't like the back and forth, and I've been very clear about that, and I won't participate," he said.

Thomas said that when he was a lawyer, most of the appellate arguments he made in court were without interruption, and he liked it that way.
From the same article,
[Scalia, a word lover,] contrasts with Thomas, who, when asked by interviewer Bryan Garner whether he would describe himself as a word lover, replied: "Not particularly. ... I like buses and football and cars."

Thomas noted that he was raised speaking a dialect called Geechee and wasn't comfortable speaking standard English until he was in his 20s.
posted by Philosopher Dirtbike at 7:04 AM on January 18, 2013 [1 favorite]

There is a lot of opinion in the legal profession that none of the oral argument (and maybe even the briefs submitted) amounts to a hill of beans when it comes to a Supreme Court decision, because they have all already made up their minds already.
posted by slkinsey at 7:26 AM on January 18, 2013 [1 favorite]

I do some appellate work, including one case that the SCOTUS just disposed of a few days ago by denying the petitioner's writ for cert. (thank you, Justice Thomas!)

I am not a fan of oral argument in general for the reasons already discussed here. Everything has been extensively briefed and there is not much that oral argument brings other than posturing. In fact, SCOTUS rules instruct that oral argument should assume that all the justices have read all the briefs. You get 40 pages for most filings, so there is a lot that can be covered. What more does a half hour bring? Did you forget to put some great argument in your brief?

It is worth pointing out that at least in the district courts, there is generally not oral argument on motions. Most district courts' local rules provide that motions will be decided on the memoranda only, with oral argument being granted upon request of the moving party. You need to have a pretty good reason to request oral argument - what are you going to say at oral argument that you couldn't say in your memorandum? I tend to agree with this way of thinking.

The intermediate appellate level is different. The circuit's local rules generally hold that oral argument must be allowed unless the court decides that oral argument is not necessary.

In the state courts in my state, the appellate courts may grant oral argument upon request but do not have to. In practice, they usually do. The questions I get tend to be clarifying issues. In at lease one instance, I had the feeling that the court was asking me pretty pointed questions that indicated that they were going to rule my way but they wanted to really lock down their reasoning for doing so. (they ended up ruling my way) In the SCOTUS context, an example might be at Citizens United's oral argument when Kagan's deputy, Stewart, said that the law at issue could be used to ban the publication of books. That was a big enough bomb that SCOTUS requested a second oral argument, which is an unusual request.

I have also noticed at the trial court level that the courts are moving more towards a system of deciding motions on the filings rather than at oral argument.
posted by Tanizaki at 7:28 AM on January 18, 2013 [4 favorites]

You can add me, an interested layman, to the group of people who don't think oral argument participation is necessary. I don't think much of Thomas but that's all about some of what I think are pretty tortured positions and opinions, not his oral argument (lack of) participation.

It's an interesting question, really, whether oral arguments have a useful place as they stand. As said above, there's no shortage of paper provided the justices. So for oral arguments to provide a real purpose they'd have to serve to fill in the blanks of what's not in the paper. But the attorneys set their own structure and write their own remarks. You'd think that the more sensible thing would be for the justices to drive the discussion.

Which is not to say they don't; you can read transcripts and see that sometimes they run roughshod over some petitioners to the point where there's no way the attorney is covering the ground they meant to.

I think it's also an interesting question to wonder - is the court's hostility to cameras and recordings based on a belief that the arguments are serious business or a reflection of the fact that they think it's 98% bullshit and therefor they don't want it recorded and blown up into more of a thing than it really is?
posted by phearlez at 8:20 AM on January 18, 2013 [1 favorite]

I generally don't agree with Thomas on matters of legal doctrine, but I think his take on oral arguments is reasonable and is unrelated to his ability to serve as a justice. (I think he's a very smart guy and a talented lawyer, but is just wrong on the law.) By the time a case gets to the Supreme Court there are lower court opinions and briefs that should comprehensively set forth the legal arguments on both sides.

There can be some value in having a hearing because it lets the justices probe the strengths and weaknesses of a case and ask any lingering questions that they might have. However, many of the questions asked by the Justices in recent years seem to be more about them showing off or making points to each other.
posted by Area Man at 10:05 AM on January 18, 2013 [1 favorite]

In one very important respect, Thomas isn't pulling his weight as a Justice. Oral argument isn't just for the benefit of the judges -- it's for the public. It serves an important educational function. People who are not directly involved in the process, but who may be affected by the ruing or who are just interested, are not going to read the briefs. But some of them will listen to the oral arguments, and the oral arguments will give them a reasonably decent understanding of the issues, and of the thought process involved in deciding them. The challenge presented by the judges' questions results in a much truer picture of the difficult issues in the case than you would see if the lawyers were just talking without interruption.

Oral argument is a very effective way for the court to inform and educate the public about the issues the court is deciding, and this is important. The decision process is supposed to be public and transparent. The process would be a lot less effective if the judges just sat there while the lawyers gave speeches.

If one Justice doesn't contribute, that's no big deal. But it is part of his job, and I think it's bratty of him to make no effort to do it. Most people don't have the privilege of refusing to perform the parts of their jobs that they don't like. If he doesn't believe in the process, what's he doing on the Supreme Court?
posted by Corvid at 11:19 AM on January 18, 2013 [4 favorites]

Incidentally, one of Metafilter's members argued a case before the Supreme Court in 2001. Clarence Thomas asked her one question (he may have asked Dellinger questions as well).
posted by UrineSoakedRube at 11:25 AM on January 18, 2013 [3 favorites]

phearlez> is the court's hostility to cameras and recordings based on a belief that the arguments are serious business or a reflection of the fact that they think it's 98% bullshit and therefor they don't want it recorded and blown up into more of a thing than it really is?

The link I provided in my comment above has audio recordings of the oral arguments. I don't know if this is done in every case or not.
posted by UrineSoakedRube at 11:28 AM on January 18, 2013 [1 favorite]

Since this is a hint chatfiltery already and the whole subject is about participation in oral arguments...

Yes, audio is available but the court controls the recording process and the release schedule. Personal recording devices of any kind are not allowed so the court is the exclusive arbiter of what gets recorded and released and when.
The Court began audio recording oral arguments in 1955. The recordings are maintained at The National Archives and Records Administration. Prior to the 2010 Term, the recordings from one Term of Court were not available until the beginning of the next Term. The Archives will continue to serve as the official repository for the Court’s audio recordings.
Emphasis mine.
posted by phearlez at 12:42 PM on January 18, 2013 [1 favorite]

In one very important respect, Thomas isn't pulling his weight as a Justice. Oral argument isn't just for the benefit of the judges -- it's for the public.

This argument is undermined by the fact that the public's access to oral arguments is actually quite limited. As pointed out above, the Court does not permit recording devices of any kind into the proceedings, and it releases audio recordings in dribs and drabs as it sees fit. The only meaningful way of learning about the Court is to either go yourself or do the reading. Attendance in person is impossible or at least vastly impractical even for most lawyers, let alone interested laymen. I mean, have you been to the Court? The room isn't that big, and it only sits a few dozen people. Seating is on a first-come, first-serve basis, and if you aren't there at o'dark thirty the day of arguments, you're not getting a seat. There's actually a "three minute line," where you can go and listen for three minutes, then go back through the line and do it again. It's always packed. If oral arguments were really for the benefit of the public, they'd be a lot easier to watch. As it is, it's as if the Court grudgingly recognizes that the public wants to see and has made some remedial provision for such.

With that in mind, concluding that the whole thing is just a chance for expensive lawyers to strut and fret their thirty minutes upon the stage is not entirely unreasonable.
posted by valkyryn at 12:53 PM on January 18, 2013 [3 favorites]

Oral argument isn't just for the benefit of the judges -- it's for the public. It serves an important educational function.

If this education component were so important, I think SCOTUS would have started releasing audio recordings of all oral arguments as a matter of course before October 2010. (yes, recording began in 1955 but the records were held at the National Archives).

SCOTUS can decide whether to grant oral argument or not. Is the public denied education where no oral argument takes place? What happens then?

If someone is sufficiently interested in the case, they can read the briefs or the opinion that the court ultimately releases. Of course, that usually doesn't happen because the law is boring, so most people will read a blog post about the opinion or watch a talking head on cable news. While it is nice to have the audio recordings, I don't know if a justice asking questions is a duty of the office. I know when I am making oral argument before a court, I don't think I am there to educate members of the public who might be passing through - I'm there to advance my client's interests. While a bystander might learn a bit of law in the process, that is entirely incidental.

I view Thomas' taciturn matter to be similar to my attitude towards student questions in class. A lot of people are really big on students speaking up in class to ask questions, and many professors even encourage it. I disagree. The great majority of the time I was a student, when a student asked a question, he demonstrated that he couldn't keep up and didn't understand what the teacher/professor said. Maybe Justice Thomas doesn't think he needs to ask questions to which is already knows the answer just so some member of the public might listen.
posted by Tanizaki at 1:05 PM on January 18, 2013 [1 favorite]

There are a number of intelligent people that think that Supreme Court oral argument is an empty and pointless ritual. My own guess is that there is an element of truth to this, and that Thomas thinks there is a very large element of truth to this. I tend to think that oral argument would be just as worthwhile if the Justices spoke one-half or one-quarter as much as they do, and that some of their speech suggests a lack of self-restraint which is institutionally insoluble.
posted by Mr. Justice at 5:11 PM on January 18, 2013 [2 favorites]

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