Clarence Thomas – A Disservice to Us All

by Professor Byron L. Warnken on February 24, 2011

A United States Supreme Court Justice does a disservice to all of us by not being engaged.  Justices must participate in oral argument to fully understand the issues, to afford the advocates an opportunity to advocate, and to educate the public about the judicial system.  In addition to submitting briefs, the parties engage in oral argument with the nine justices so as to educate the justices and to learn what issues concern them.  In appellate practice, unlike trial practice, judges normally interrupt the advocates to ask questions.  Oral argument has been compared to a conversation between the justices and the attorneys.  On the current Court, eight justices routinely ask numerous questions during each oral argument.  Justice Clarence Thomas, to the contrary, has not asked one question throughout more than 350 consecutive cases. He even suggested that his colleagues should follow in his example. Thomas told law students at University of Alabama that “I refuse to participate; I don’t like it so I don’t do it.” Other than occasionally reading a court decision, Justice Thomas has not spoken in an argument in the past five years, last doing so on February 22, 2006.

The Supreme Court only hears cases that present the most complicated and important legal issues.  Attorneys on both sides of these issues write detailed appellate briefs that endeavor to simplify the issues, so as to persuade the Court that the law, when applied to the facts, supports that advocate’s position.  In most cases, even with the best legal writing, there are still intricacies and subtleties that need to be developed through discussion.  In 1955, Justice John Harlan wrote that oral argument “gives an opportunity for interchange between court and counsel which briefs do not give.”  He stated that, in the Court’s job of searching for the truth, there is no substitute for oral argument for “getting at the real heart of an issue and in finding out where the truth lies.”  John M. Harlan, What Part Does the Oral Argument Play in the Conduct of an Appeal? 41 Cornell L.Q. 6, 7 (1955).

When attorneys brief issues in a case, both sides provide their interpretation of the law and their interpretation of the record to which to apply that law.  The process of reading the briefs submitted by the parties, invariably, raises questions with the justices.  It is hard to believe that a justice would have no questions after reading the briefs – especially in 350 consecutive cases.  Certainly, justices must find the interchange during oral argument to be useful in reaching a decision in that case.

Retired Supreme Court Justice Sandra Day O’Connor, speaking at Cornell University last year, emphasized that oral argument assists the justices in rendering a decision.  She noted that oral argument is important because it “identif[ies] and spell[s] out the legal issues of the cases.”  It shapes “a consistent, coherent body of law,” and it gives “a chance for the justices to hear each other’s concerns and views.”  Jasmine Marcus, Justice O’Connor Addresses Oral Argument, Supreme Court, The Cornell Daily Sun (Oct. 27, 2007).   If no justice ever asked a question, all cases could be decided entirely “on brief” and there would be no need for any advocate to fly to Washington and engage the justices.  It is hardly worthwhile for attorneys to give uninterrupted “canned” presentations of what is written in the brief. Current justices other than Clarence Thomas agree that oral arguments with lawyers gives them an opportunity to clarify aspects of the case and on some occasions can even persuade them to change their decision. During Justice Sonia Sotomayor’s first day on the bench of the Supreme Court she asked more than 30 questions. In one day Sotomayor had more interaction than Justice Clarence Thomas has had throughout his entire career.

The jurisprudential process, of necessity, “calls for” an intellectual dialogue among the attorneys and the Court. Thomas clearly disregards the need for these dialogues, claiming that oral arguments are unnecessary in deciding a case, that his mind is already made up before any argument.  Justice Thomas does all Americans a disservice when he elects to resolve issues and cases without the benefit of oral argument.  I have been involved in five cases before the Court.  On December 11, 1996, as “counsel of record,” I argued Maryland v. Wilson against U.S. Attorney General Janet Reno and Maryland Attorney General J. Joseph Curran.  The bench was very active.  Eight of the nine justices asked me 22 questions during 30 minutes.  It is difficult to believe that, counting the Attorney General of the United States, the Attorney General of Maryland, and I, we were unable to pique the curiosity of Justice Thomas as to even one question.

At the time of his nomination, I supported President Bush’s decision to name an African-American to the Court to replace Justice Thurgood Marshall, the first African American Justice.  However, Justice Thomas came to this Court with minimal experience as an appellate judge, having only been a judge on the United States Court of Appeals for the District of Columbia Circuit for less than two years.

During his confirmation hearing, when Justice Thomas testified before the Senate Judiciary Committee, he was unable or unwilling to answer questions about his views on the fundamental issue of the right of privacy, especially the right to an abortion and the application of Roe v. Wade and its progeny.  Justice Thomas stated that he had not read the case and that he was unfamiliar with an article by Lewis Lehrman, which he later supported in speeches and his writings.  This article called for Roe v. Wade to be overturned, and for abortion, even in cases of rape and incest, to be banned in every state of the union.  Justice Thomas also stated that he had not read — and was unfamiliar with — a report that he signed that advocates for greater state regulation of families than was allowed by law. Thomas not only avoids interaction in the court room, often in public appearances he steers clear of legal topics and controversies as well.

Considering that he had so little appellate experience at the time of his confirmation, and considering that he was unprepared for the questions, it comes as no surprise that Justice Thomas decides cases with no discussion with any of the advocates.  Do we really want a Supreme Court justice that is so disengaged that he does not consider any point of view other than his own before he makes a decision that could arguably affect millions of Americans?

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