If polls show the American public has a somewhat gauzy understanding of the work of the high court and the justices who serve on it, it seems that one fact has cut through the fog.
In just a few days, it will be seven years since the court’s now third-longest serving justice has asked a question at oral arguments. That’s why Thomas’s joke from the bench last month hit with the surprise and impact of a Russian meteor, thrusting Thomas and The Streak back into the national conversation.
But the notion of a silent Thomas has never been exactly as it seems. For one thing, he apparently does get some of his questions answered, even if he doesn’t ask them.
Some justices have told others that Thomas sometimes jots down inquiries and urges Justice Stephen G. Breyer, his friend and seatmate on the bench, to pose them.
The two often confer during oral arguments, and Thomas confirmed during a recent appearance at Harvard Law School that the talkative Breyer sometimes throws in a Thomas question.
“I’ll say, ‘What about this, Steve,’ and he’ll pop up and ask a question,” a laughing Thomas told the law students. “I’ll say, ‘It was just something I was throwing out.’ So you can blame some of those [Breyer questions] on me.”
And another thing is the Harvard speech itself. Although he described himself during the interview with HLS Dean Martha Minow as “quite introverted” and said he could “go a lifetime without making public appearances,” his extracurricular life is as busy as that of any of his colleagues.
He regularly speaks to law students at campuses around the country. Last fall, he discussed the Constitution with Yale law professor Akil Amar before a packed house at the National Archives.
The Harvard speech would have been a surprise to those who don’t regularly catch his appearances. Thomas was warm and effusive about the quality of the students he met, and said he wished he had been more like them during his law school days at Yale.
He described himself as someone who tends “to get along well with people.” He was lavish with praise for his colleagues — especially the liberals.
He called Justice Ruth Bader Ginsburg the epitome of what a judge should be. “She makes all of us better judges,” he said. He called President Obama’s most recent nominee, Justice Elena Kagan, a delight and said he told her that “it’s going to be a joy disagreeing with you for years to come.”
And Thomas once again explained why he doesn’t ask questions at oral arguments.
“I think it’s unnecessary to deciding cases to ask that many questions and I don’t think it’s helpful,” he said. “I think we should listen to lawyers who are arguing their case and I think we should allow the advocates to advocate.”
While there are some past justices who like Thomas rarely asked questions, there are reasons that Thomas’s answer is not entirely satisfying. The advocates get their chance to argue their cases in the briefs they submit to the court; oral arguments provide the opportunity for justices to challenge those assertions.
And certainly, Thomas’s colleagues across ideological lines disagree with him — it is one of the most active benches in history. Perhaps they ask enough questions without him.
But there is a subtext to any conversation about Thomas. Those who opposed his confirmation dislike him still, and use anything unusual about him to raise old questions about his qualifications. Those who dislike those who dislike him say that the media’s portrayal of Thomas tends to reinforce those doubters.
The Weekly Standard criticized The Washington Post and others for giving exaggerated coverage to Thomas’s comments from the bench last month, saying they didn’t warrant front-page attention.
Which brings us back to the Texas speech. My answer to the questioner explained what Thomas had said in the past about not asking questions. I said I thought it was surprising that he takes such a view, because the attorneys’ arguments deserved questioning. And I said I thought it was too bad that Thomas didn’t participate, not only because it would be interesting to get his take, but also because it would provide a glimpse of the personality that is on display during his speeches.
Afterward, the snarky questioner introduced himself and confessed that he was a former Thomas clerk. I asked if he posed his question the way he did to bait me into saying something negative about the justice.
He said he just wanted to get my candid view. He said he agreed with my answer. And he said he also wished Thomas would ask questions.
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