Clarence Thomas' Supreme Court silences are far less worrisome than his private speeches.

The law, lawyers, and the court.
Feb. 15 2011 5:35 PM

The Right To Remain Silent

Clarence Thomas' Supreme Court silences are less worrisome than his private speeches.

(Continued from Page 1)

The problem with Thomas—and probably the sole reason his protracted public silence on the bench is attracting so much attention—is in his off-the-record private whispers. Thomas' silence on the bench is all the more striking because of his partisan, and increasingly noticed, extracurricular life. As Eric Lichtblau notes in today's New York Times, the advocacy group Common Cause has been questioning the justice's participation in last year's campaign-finance case, Citizens United, in large part because of Thomas' attendance at a private 2008 event in Palm Springs, Calif., organized by Charles and David Koch, prominent organizers and financiers of conservative causes. Thomas has raised eyebrows not only by participating in such off-the-books conferences, but by simultaneously failing to file years' worth of financial disclosure forms. All of this is compounded by his wife's ever-more-vocal involvement as a paid lobbyist for conservative causes.

In other words, Thomas' oath of public silence is rather selective. Thomas' official public face may be a stony mask of silence, but he is perfectly capable of speaking—in flawless and powerful modern English—before student groups and closed conservative gatherings. He also appears to believe that financial disclosure by public officials—evidently including himself—represents an unconscionable invasion of his privacy. This combination of public silence, private advocacy, and contempt for transparency is the real problem Thomas has created, not the silence itself.

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Anyone who has read Thomas' powerful autobiography, My Grandfather's Son, well knows that he carves up the whole world into two camps: His supporters and his persecutors. There is nobody in the middle. Thomas' choice to be silent in the only public performance by the entire court—oral argument—and his decision to absent himself from the court's most public event—its attendance at the State of the Union—is noteworthy because it highlights Thomas' certainty that the court's most public spaces have become hostile spaces for him. Thomas testified to this effect in 2009 when he explained to the Senate Judiciary Committee that he opposed the introduction of cameras at the Supreme Court mainly because of the security implications. Thomas and his wife like to describe themselves as "Washington outsiders" and "ordinary Americans," but his persistent refusal to interact with ordinary people in formal public settings indicates that he finds ordinary Americans as judgmental and angry as the liberal elites he seeks to shun.

Clarence Thomas is perfectly entitled to speak to whomever he wants. He also has the right to remain silent, and we should take him at his word that it's as important for justices to listen as to speak. The problem isn't that Thomas needs to speak more, or even more often. It's that he appears to have convinced himself that there are no safe, neutral public places in which he can speak at all. In the end, it's not what we think of Clarence Thomas and his silence that should most worry us; it's what he thinks about us that's a cause for concern.

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