Justice Clarence Thomas’s abstention from participation in Supreme Court oral argument has passed the eight-year mark, and Jeffrey Toobin does not like it at all: “His behavior on the bench has gone from curious to bizarre to downright embarrassing, for himself and for the institution he represents.” According to Toobin, the justice’s silence is problematic because it reflects a disengagement that signals disrespect for the advocates appearing before him, his colleagues on the Court, and the public, which is denied any other glimpse of the nation’s top judges thinking through the legal issues at hand. Michael McGough responds by observing that Thomas is hardly reticent about expressing his views in his written opinions, or in public addresses off the bench, and that Toobin places too much significance on what happens during oral argument. Thomas’s silence, while “strange,” hardly merits the New Yorker headline, “Clarence Thomas’s Disgraceful Silence.”
I’m ambivalent on the significance we should attribute to Thomas’s behavior. On one hand, when I see students of mine declining to participate in class discussions, even on subjects I would expect to attract their interest, I wonder if they’re really all there. At the same time, if those students perform well on the exams and write papers that display engagement with the subject matter, I tend not to worry as much. (One reason I grade exams blind is so that I won’t be tempted to cut any slack to frequent participants.) Students who tune out, however, do give me reason to think about whether the content and classroom presentation are providing something of value to them.
Justice Thomas has made clear that oral argument offers little value to him. The justices, in his view, receive sufficient information from the briefs and lower court opinions, and oral argument proves a distraction at best. Unlike my less engaged students, Thomas lacks the Hirschmanian (?) exit option; cutting oral argument isn’t a viable option for him. (My students’ incentive to stick around, the class participation component of their course grade, has no analogue for Thomas.) But he does have the Hirschmanian voice option: advocacy on behalf of abolishing oral argument.
To the best of my knowledge, Thomas has not publicly called for the elimination of oral argument. If given the opportunity to speak with Thomas, I’d love to ask him (1) whether he would favor that action, (2) if so, why he has not spoken publicly in favor of it, and (3) (assuming his support) whether he has privately lobbied his colleagues on the matter. I imagine he’d probably find little support from his colleagues on the chattiest bench in Supreme Court history, but he might be able to persuade the public that the Court could make better use of the dozens of hours that would become available to the justices each year. Such advocacy could be Thomas’s way of lighting a candle instead of silently cursing the darkness.
* For those of you who are unfamiliar with Kevin Smith’s directorial output, Silent Bob is a recurring character played by Smith. In contrast to his motor-mouthed and frequently profane buddy Jay (who, if Silent Bob is Thomas, must be Scalia), Silent Bob says nothing for most of each film. Typically, there will be a key scene toward the end of the film during which he shares his wisdom (here’s a very-NSFW montage) Maybe the Thomas analogy breaks down here….