February 21, 2014
Clarence Thomas’s Disgraceful Silence
of this Saturday, February 22nd, eight years will have passed since
Clarence Thomas last asked a question during a Supreme Court oral
argument. His behavior on the bench has gone from curious to bizarre to
downright embarrassing, for himself and for the institution he
This point was especially apparent on January 13th, when the Court considered the case of National Labor Relations Board v. Noel Canning,
which raises important questions about the President’s ability to fill
vacancies when the Senate is in recess. It was a superb argument—highly
skilled lawyers engaging with eight inquisitive judges. The case also
offered a kind of primer on the state of the Court in action, with
Thomas’s colleagues best viewed in pairs.
Antonin Scalia and Ruth Bader Ginsburg.
The two oldest Justices (and the Court’s senior New Yorkers) usually
jump in first with questions. Scalia, who is seventy-seven, often takes a
barbed tone with the lawyers, and Ginsburg, who is eighty, is more
polite, if no less insistent. Both of them set the tone with their
ideologically opposed positions. They offer an early clue as to whether
the Court will divide along familiar left-right grounds.
Anthony Kennedy and Stephen Breyer. Oddly, these
two, both Northern Californians, are starting to resemble each other
physically in their eighth decades. Both sit in similar ways, hunched
forward, with the fingers of their right hands splayed between forehead
and bald head. Kennedy asks questions in a tone of grave concern;
Breyer, in his twentieth year on the Court, is still having the time of
his life. He laughs at all the jokes, especially his own.
Samuel Alito and John Roberts. Alito sits like a
sphinx: his face gives away nothing, but his questions invariably tease
out the weak parts of an opposing argument. Roberts looks like the
earnest Midwesterner he remains, but he, too, has a litigator’s gift for
eviscerating an adversary. It is wise to listen closely to these two;
they are rarely on the losing side.
Sonia Sotomayor and Elena Kagan.
The Court’s youngest members (and junior New Yorkers) sit on opposite
ends of the bench, and both take aggressive tones with the lawyers.
Sotomayor leans forward, her right forearm aimed skyward and nearly
covered in bracelets; she burrows into the facts of cases in
extraordinary detail. Kagan takes the opposite tack. Her early trademark
question is about the big picture, and it’s usually a refined version
of “Counsel, let’s cut the crap. Isn’t this case really about … ?”
Neither Sotomayor nor Kagan has ever heard Thomas ask a question in the
courtroom. (Yes, Thomas did break his silence last year to utter a single stray wisecrack, but that hardly counts as participation.)
As for Thomas, he is physically transformed from his infamous
confirmation hearings, in 1991—a great deal grayer and heavier today, at
the age of sixty-five. He also projects a different kind of silence
than he did earlier in his tenure. In his first years on the Court,
Thomas would rock forward, whisper comments about the lawyers to his
neighbors Breyer and Kennedy, and generally look like he was
acknowledging where he was. These days, Thomas only reclines; his
leather chair is pitched so that he can stare at the ceiling, which he
does at length. He strokes his chin. His eyelids look heavy. Every
schoolteacher knows this look. It’s called “not paying attention.”
Thomas has a part to play, if he wants to take it. The Noel Canning
case, for example, raises a profound issue in constitutional law. Noel
Canning, a bottling company, is challenging a ruling of the National
Labor Relations Board on the ground that some of its members were
appointed illegitimately. All Presidents have used recess appointments,
often without much controversy; Obama did so in this case because
Congress had refused to act on his nominations, to the point that the
N.L.R.B. didn’t have a quorum. But a close, literal reading of the
Constitution’s text suggests that the practice may be unconstitutional
except in narrow circumstances. Does the meaning of the Constitution
evolve over time, or is there only a single, immutable understanding of
what it says?
Questioning the lawyer for Noel Canning, Breyer noted that Presidents
have made thousands of recess appointments over the decades. Even if
the Constitution could be read as prohibiting the practice, wasn’t it
clearly legal now? “It isn’t unheard of that over time language in the
Constitution takes on a somewhat different meaning,” Breyer said, noting
that the definitions of “due process” and “interstate commerce” had
clearly changed. “I mean, probably different judges have different
approaches,” Breyer went on. “But if I’m concerned about the basic
practicality and the basic objective here, why would I agree with you?”
As the lawyer, Noel Francisco, hedged, Scalia jumped in. “The two
examples that Justice Breyer gives are examples where we gave it a
meaning that was different from what it said.” The audience, worldly in
such matters, laughed. Breyer, the proponent of the living, changing
Constitution, and Scalia, the originalist, have been having this
argument for years.
No one, however, has been more outspoken about this conflict, at
least on paper, than Thomas, the most extreme originalist on the Court.
Scalia believes that the Court owes some deference to its own
precedents, even if they differ from the original meaning of the text.
Thomas is happy to lay waste to decades, even centuries, of
constitutional law. Clearly, then, Thomas could have contributed to this
spirited, important debate. Instead, on this day he was, as usual,
For better or worse, Thomas has made important contributions to the
jurisprudence of the Supreme Court. He has imported once outré
conservative ideas, about such issues as gun rights under the Second
Amendment and deregulation of political campaigns, into the mainstream.
Scalia wrote District of Columbia v. Heller, which restricted gun
control, and Kennedy wrote Citizens United v. Federal Election Commission, which undermined decades of campaign-finance law, but Thomas was an intellectual godfather of both decisions.
Still, there is more to the job of Supreme Court Justice than writing
opinions. The Court’s arguments are not televised (though they should
be), but they are public. They are, in fact, the public’s only windows
onto the Justices’ thought processes, and they offer the litigants and
their lawyers their only chance to look these arbiters in the eye and
make their case. There’s a reason the phrase “your day in court”
resonates. It is an indispensable part of the legal system.
But the process works only if the Justices engage. The current
Supreme Court is almost too ready to do so, and sometimes lawyers have a
hard time getting a word in edgewise. In question-and-answer sessions
at law schools, Thomas has said that his colleagues talk too much, that
he wants to let the lawyers say their piece, and that the briefs tell
him all he needs to know. But this—as his colleagues’ ability to provoke
revealing exchanges demonstrates—is nonsense. Thomas is simply not
doing his job.
By refusing to acknowledge the advocates or his fellow-Justices,
Thomas treats them all with disrespect. It would be one thing if
Thomas’s petulance reflected badly only on himself, which it did for the
first few years of his ludicrous behavior. But at this point, eight
years on, Thomas is demeaning the Court. Imagine, for a moment, if all
nine Justices behaved as Thomas does on the bench. The public would
rightly, and immediately, lose all faith in the Supreme Court. Instead,
the public has lost, and should lose, any confidence it might have in