When the United States Supreme Court makes a ruling, it has the potential to make revolutionary changes to the fabric of America. The impact of the nine justices reverberates throughout our country's history. As citizens, we should probably pay attention to people with that kind of influence over our society, and make an effort to understand their decision-making process. So we read their opinions, decipher their reasoning and ultimately adapt to their rulings. But as the opinions break word count records the median opinion length has doubled in the last 50 years and grow more inaccessible to the average American, we increasingly rely not only on a justice's written opinions but also on their questions during oral argument to understand their reasoning. Unfortunately, one of our nation's supreme arbiters does not vocally participate in the debates of national importance that are presented before him.
As The New York Times recently reported, Justice Clarence Thomas of the Supreme Court has not asked a question or uttered a word during oral argument for over five years now. Although some former justices were considered "quieter" than others, Thomas' streak of silence is one of a kind and thus reason for concern.
Outside of the courtroom, Thomas has offered varying explanations for his silence. He has mentioned that ever since college, he has prefered to listen rather than speak because he was taunted for his accent after growing up speaking the Gullah language in coastal Georgia. He also argues that it is difficult to cut in with a question while the rest of the justices bombard the counsel with their own remarks. But Thomas is a well-respected Supreme Court justice, and he can surely assert at least one or two questions over Justice Antonin Scalia, the infamous interrogator on today's court.
In his final and most worrisome explanation, Thomas added that he is also silent out of courtesy to the parties invited to argue their cases before the court. I agree that the lawyers facing the court need to have a chance to present their case without being interrupted after every other sentence, but passive listening without challenge by a justice seems equivalent to giving lawyers a free pass. Though lawsuits are conflicts between two separate parties unrelated to the judges, members of the court should, and typically do, involve themselves in oral arguments as the impartial third party. By actively participating in the oral argument, they scrutinize both sides' cases and keep the lawyers on their toes. If judges were only meant to listen, then simply submitting written briefs would suffice.
Thomas' silence doesn't prevent him from making a valid judgment and he writes opinions that explain his reasoning as required. But this process of legal judgment is far less probing than oral interrogation. Questioning allows the justices to parse arguments and tackle any matters that lie beyond a lawyer's presentation.
Former Justice Sandra Day O'Connor personally felt that questioning is "a chance for the justices to hear each other's concerns and views." If a justice's background affects their perspective and judgment, as was debated during Justice Sonia Sotomayor's confirmation hearings, then Thomas' experiences would certainly set his questions and comments apart from the rest. The court, the parties and the public are thus robbed of the opportunity to hear questions that could potentially shift the course of the argument.
Yet what disturbs legal scholars most is that Thomas often writes broad opinions on issues that were never even mentioned throughout case proceedings. Supreme Court observers are left astounded when his written opinions present an argument or perspective that was never even raised in the courtroom. Hearing Thomas during oral argument would shed light on his reasoning and thought process, which would be a good thing regardless of whether his opinions are straightforward or out of left field. His silence, however, leads critics to cry judicial activism.
Fortunately, we have eight other justices on the Supreme Court who are more than happy to ask questions and challenge arguments. Nevertheless, we are missing Thomas' equally valuable perspective during oral argument. Without it, we are left with opinions that are based in reasoning we have never heard out loud.
