Does Thomas' silence thwart advocacy?

Tony Mauro
February 22, 2010
 

Four years ago, South Carolina Assistant Deputy Attorney General Donald Zelenka was about to wrap up his oral argument before the U.S. Supreme Court when he heard an unfamiliar voice.

Justice Clarence Thomas, who almost never asks questions, was asking him one, about the standard the trial court judge in Holmes v. South Carolina used for allowing certain evidence into the case.

Zelenka didn't give himself time to be surprised. "I knew there was something I needed to clarify immediately," he said. Question answered, Zelenka soon sat down.

And that exchange on that day, Feb. 22, 2006, marked the last time Thomas asked a question during oral argument. In the four years since, the only time his voice has been heard from the bench is when he announces an opinion he has written.

Thomas's reticence is often shrugged off as a harmless personal preference that is either unimportant or oddly admirable — especially when contrasted to his eight colleagues, who at times behave like school-aged showoffs, unable to contain themselves as they interrupt lawyers and each other to score points or test theories.

But at the four-year mark, it may be time to take Thomas' silence more seriously. A recent law review article, titled "Why Justice Thomas Should Speak at Oral Argument," asserts that Thomas' silence actually damages the Court and its decision-making process — not to ­mention Thomas' own ­reputation. Author David Karp argues in the Florida Law Review that, by keeping mum, Thomas in essence hides the ball and shields his often provocative legal positions from being tested before they make their way into Court opinions.

"He has something to say, and he should say it in court. Argument would be enriched by his perspective," Karp said in an interview last week. Currently clerking for a Florida federal judge, Karp wrote the article in his final year at the University of Florida Levin College of Law.

As one example, Karp noted that Thomas did not speak during the 2007 argument in Morse v. Frederick, the notorious "Bong Hits 4 Jesus" First Amendment case involving student speech. As a result of his silence, none of the lawyers got a chance to rebut or assess Thomas' latent view that students have no First Amendment rights in the first place. Thomas articulated that position in a separate concurrence in Morse.

"By removing himself from oral argument, Justice Thomas' opinions do not benefit from the full adjudicative process designed to test theories in open court," Karp wrote. "Many of his opinions, therefore, read less like the product of actual litigation, and more like constitutional commentary." Rattling off other unorthodox views Thomas has taken, Karp added, "Justice Thomas' revision of the constitutional order emerges from his chambers without exposure to public debate." Before 2006, when Thomas did on rare occasion ask questions, Karp also noted, they sometimes had powerful effect. (Read the related article for more on one exchange.)

Karp's criticism is based on a view of oral argument as a dynamic two-way exchange in which exposing the justices' state of mind is as important as fleshing out the advocates' legal arguments. He quoted the late Chief Justice William Rehnquist, who once wrote that, for an advocate, "right there at the time of oral argument you know that you do have an opportunity to engage or get into the judge's mental process." Charles Evans Hughes, one of Rehnquist's predecessors, once said that advocates "prefer an open attack to a masked battery." And veteran high court advocate Carter Phillips of Sidley Austin once wrote that, during oral arguments, lawyers "have a perfect window into the minds of the justices. They are telling you exactly what is bothering them." When it comes to Thomas, the window is opaque. Thomas declined to comment for this article.

Asked his views about Thomas' silence, and Karp's assertion that it does a disservice to the Court, Phillips said last week, "I don't know if 'disservice' is the right word. It is frustrating not to have a chance to engage on an issue like implied pre-emption before a justice decides that the theory is no longer available." But, Phillips added, "I assume the other justices discuss the issues with him. If they cannot convince him, I doubt anything I could say would do the trick."

Thomas is often asked about his silence at public appearances — where, ironically, he usually comes across as voluble, gregarious and not at all reticent. He has offered a variety of explanations, ranging from shyness that resulted from speaking the Gullah dialect as a child in Georgia to the fact that he usually comes to oral argument with his mind made up. He also says he is trying to be courteous to the lawyers by letting them make their points.

But the answer on which he has settled most often lately is to take a swipe at his colleagues for monopolizing oral argument and not letting the lawyers talk. "My colleagues should shut up!" he said in a joking tone in 2007. Earlier this month in Florida, a student asked Thomas about oral advocacy, and he began his answer with a sarcastic laugh line: "If my colleagues would let you talk...assuming that improbability"

But Karp contended that "the remedy for too much talk is not four years of silence," adding that, "In the long run, his silence is not actually polite if it enables him to cut counsel out of the decision-making process."

Karp also argued that Thomas' silence needlessly tarnishes his reputation — especially when it appears that wakefulness, as well as words, escape him. When school groups visit the high court, it is one of the first things about which they ask their tour guides afterward. In a 2007 biography of Thomas, authors Kevin Merida and Michael Fletcher quoted students from Washington's Benjamin Banneker Academic High School who visited the Court and talked about Thomas' demeanor. "Maybe he stayed up all night reading the court case — he was tired," one student offered. Said another, "If you know people are going to be watching you, you'd think you should try to make yourself presentable."

But at least one advocate thinks highly of Thomas' style at argument. "It reflects humility on his part," said Steffen Johnson of Winston & Strawn in Washington. Johnson also argued in the South Carolina case when Thomas asked his last question in 2006. Johnson was neither shocked to hear Thomas speak nor unhappy that Thomas usually says nothing. "It's no secret to those who practice at the Supreme Court that it's a hot bench. We're there to serve them, but at times it's pretty relentless and it takes skill and grace to pursue a line of argument."

Courtside is an occasional column on developments, large and small, at the U.S. Supreme Court. Tony Mauro can be contacted at tmauro@alm.com.