Mum's the Word

If you pay any attention at all to these sorts of things, you know that Clarence Thomas rarely asks questions during oral argument at the Supreme Court.  Rarely as in it's been five years, at least it will be on Tuesday.  And five years is a really long time to keep your mouth shut.

The NY Times led the charge.  First Adam Liptak reported the, er, news of the upcoming anniversary.  Then there was the Room for Debate set of mini op-eds.  And then the actual editorial.  On Bloomberg, Ann Woolner joined in.  And Dahlia Lithwick used it as a springboard to talk about Thomas and the places where he does speak.  Surely others have joined in the discussion, too.

Aside from rehearsing the variety of explanations Thomas has given over the years for why he is silent on the bench (and staring at the ceiling when he isn't exchanging quips with the Justice next to him), the back and forth of the commentariat is really grounded in two questions.

1. Does oral argument serve any purpose?
2. Does Thomas's refusal to participate have any significant consequence?

Appellate judges generally report that oral argument is important.  I've heard a number say that it changes the outcome of a case about 20% of the time.  (Which raises the question of why in so many courts you have to convince the judges to allow oral argument.  Perhaps the judges don't want their minds changed more often.)  Frankly, I've never believed it. The only credible explanation I ever heard came from a prosecutor I was talking to about it.  

Twenty percent of the time, the briefs are so bad that the judges can't figure out what the case is about until they get the lawyers in front of them. 

Maybe.

But the percentages don't answer the question.  After all, if oral argument makes a difference in the outcome of just one case, it matters in that case.  And there's no way to know in advance (or mostly even after-the-fact) which case is the one.

Last year, I wrote this.

It's always seemed to me that more cases are lost at oral argument than won. There's always the chance that the attorney for the state (which is, after all, usually the winner) will say something so mind-bogglingly stupid that the court just stops and stares. It happens more than you'd think. Mostly, though, nothing comes of it. By the time they vote, they've left the amazement behind.

It was true then.  It's true now.

In fact, even the really unlikely happens and oral argument actually wins a case.  That probably happens most when you find a new tack.  Something that looked like a throw-away in a brief turns into a potent weapon when it becomes the surprise focus of argument.

And even if oral argument doesn't change the outcome, it might change the vote or the breadth of the opinion or the offered rational.  It might influence, that is, the way the law ends up being applied or how it develops down the road.  Those aren't petty things.

And, of course, the clients like to see the lawyer up there fighting the good fight.

So yes, oral argument matters.  It serves multiple purposes.  Even though most of the time it's just an exercise.

Which forces at least a brief look at the second question.  Does Clarence Thomas matter?

I've argued a whole lot of cases, and spoken with lots of other appellate lawyers.  None of us like a silent bench.  Oh, it's less work I suppose not to have to think on your feet, just to give your set speech and sit down.  But it's irritating and frustrating.  We want to engage the panel.  We want some give and take.  Tell me what you're thinking or wondering about or just have a passing interest in and I can try to use that, maybe even switch the whole focus of my argument.

(I remember the death penalty case in the Ohio Supreme Court where I wanted to talk about how the entire sentencing proceeding was fucked up but the justices all wanted to talk about how weak the evidence of what made it a death-penalty murder was.  They were right, the evidence for that sucked.  We'd argued it in the brief, but didn't imagine the court would care much.  But they picked the topic, so we talked at length about the offense and the evidence.  They didn't rule my way on that question, but the did reverse the death sentence - and one reason, I'm certain, is that they had serious doubts about whether my client was actually eligible for the death penalty.)

And Thomas just sits there.

The Times editorial says he should ask questions to show that he's serious.

[H]e would show his dedication to the court’s impartiality and to its integrity as an institution. 

That strikes me as silly.  He shows (or doesn't) that dedication through his opinions.  Oral argument is, as all courtroom performance is, a form of theater.  But the judges and justices ought not to be treating it that way.

At Room for Debate, neither Orin Kerr nor Vickram Amar see any substantive issue.  If Thomas doesn't choose to speak at oral argument, that's really his business and doesn't make any difference anyhow, though Amar joins the Times in finding a theatrical value to questioning.

But one aspect of a justice's job might require participation in oral argument. This has to do not with communicating with other justices, but rather communicating with the public. America needs to have confidence in the court as a whole, and in each of its members. Because oral argument is one of the few chances the public has to see how -- and that -- the justices' minds function, it can be a beneficial reminder to us all that the members of the court do their own thinking and their own work. Written opinions don't quite perform this function, because of the possible but unknowable influence of law clerks. 

That would make a whole lot more sense if "the public," whoever they are, had any actual interest in or knowledge about oral argument.  Oh, the gallery at the Court fills, but that's mostly tourists and civics classes and a small number of people who really care about the particular case or about Court business.  Go to any typical appellate court in the country and the gallery will, typically, contain only lawyers and staff, maybe a client or two perhaps accompanied by family, possibly a few reporters, and maybe a bunch of students.  The public mostly isn't there and doesn't care and wouldn't know it was watching.  

Trials are the sexy things.  Appeals are for geeks.

Jamal Greene has a more coherent take.  Why bother with argument if you're not interested in what anyone says, your min is made up, and you don't care to try and push the rest of the bench to see things your way.

More generally, though, many of the reasons for oral argument assume that the justices are either keen to persuade others of their views or are open to persuasion themselves. There is little evidence that Justice Thomas fits this description. He is a judicial iconoclast, opposed to following constitutional precedents with which he disagrees and unwilling to moderate his positions to achieve consensus. 

It's the guy with the empirical data, Timothy Johnson, who takes a significantly different tack.  Oral argument is, he says, substantively important.  It makes a real difference.  Trust him.  He has the numbers.  OK.  Let's pretend he's right.  What does that have to do with whether Thomas should (for whatever reason) ask questions?  he doesn't even hint at an answer.

And really, neither does anyone else much.  Beyond theater.

He should engage in oral argument because it makes him seem engaged.  That's the best they can do?

Thomas speaks when he wants.

• When he's promoting his book.
• When he's talking to conservative audiences in tightly controlled settings.
• When he's doing the talking.

He doesn't speak at oral argument because, well, he doesn't.

So be it.

Maybe he's not curious.  Maybe he's embarrassed.  Maybe he really does want just to hear what the lawyers have to say.

And of course, insofar as court is theater, and I repeat that it is, his silence is his own theatrical statement.  His script.  He won't play the game.  He's too serious.

Silence is speech.  Here's the text.

You want to know what I think, what motivates me.  Read the damn opinions.

What's interesting is how few people get it.