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Oral Argument

Jan 28, 2013, Vol. 18, No. 19
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When Greta Garbo appeared in Anna Christie (1930), her first movie with sound, MGM breathlessly advertised the film by announcing that “Garbo talks!” This made a certain sense at the time: Garbo was a big star and was Swedish, and there had been uncertainty about whether her accented English would translate successfully to the screen. By contrast, it is a little more difficult to understand the front-page story last week in the Washington Post (“The seven-year silence ends—but what did the justice say?”) when Justice Clarence Thomas spoke from the bench for the first time since 2006. 

Justice Thomas

First, a couple of facts. Thomas is the rare justice who almost never says anything when the Supreme Court hears oral arguments. This is in marked contrast to recent custom, and certainly sets him apart from some of the Court’s well-known chatterboxes—notably Justices Antonin Scalia and Elena Kagan—who enjoy mixing it up with advocates, asking provocative questions, and scoring rhetorical points. For the record, Thomas has said that he thinks it’s rude to interrupt lawyers, who have limited time to make their case; and anyway, most justices have already made up their minds by the time oral arguments are heard.

The other fact is that no one is quite sure what, exactly, Thomas said on January 14: Several people were speaking at the same time, and nobody, including the Court’s reporter, knows what Thomas said beyond the official transcript: “Well—he did not—.” There seems to have been a joking remark about the qualifications of lawyers trained at Yale Law School, and Thomas is known for his ambivalent attitude toward his alma mater. 

But why did these four garbled words merit a front-page story in the Post, an equally detailed account in the New York Times, even a post and discussion on the Yale Law alumni blog? The answer, alas, is that the story conforms to the widespread notion on the left that Justice Thomas doesn’t participate in oral arguments because (a) he’s unable to do so because he isn’t very smart, and (b) as a black conservative he’s a peculiar character, and here’s another symptom.

Unfortunately, this tells us considerably more about his detractors than about Justice Clarence Thomas. For the fact is that lively argument between bench and bar on the Supreme Court is by no means a great tradition, or even a common occurrence in the Court’s long history.

In its early years, the Supreme Court was largely dependent on oral arguments in place of briefs, and so justices were inclined to ask questions and, in effect, debate with advocates. But after the 1830s, the Court adopted more businesslike practices, and oral exchanges between justices and lawyers declined. 

Official transcripts of proceedings date only from the era of the Warren Court, but there is little record—in memoirs, historic monographs, or journalistic accounts of Court proceedings—of such giants as Louis Brandeis or Oliver Wendell Holmes, for example, engaging advocates during oral argument. Indeed, the preeminent liberals on the modern Supreme Court—William O. Douglas and William J. Brennan—were, like Clarence Thomas, deliberately circumspect during proceedings.

Which proves nothing, of course—except that some modern justices, for various reasons, like to engage in rhetorical duels with lawyers, but Justice Thomas prefers to keep his mouth shut and let the advocates make their case. There is ample precedent for such behavior; you could even argue that Thomas is more typical of justices than not. Which is proof, in The Scrapbook’s view, of Clarence Thomas’s good manners, and the dubious instincts of an adversarial press that fails to recognize a great jurist when it sees one. 

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