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jurisprudence: The law, lawyers, and the court.

Open BooksWhy Supreme Court justices' speeches are less important than oral arguments.

By Dahlia Lithwick
Posted Friday, Nov. 30, 2007, at 6:49 PM ET

Clarence Thomas

It's been two years now since we first took the John Roberts Court out for a spin, and it's probably time enough to start close-reading the fine print. Scholars are becoming more comfortable describing broad trends (PDF) at the high court, refining their early predictions, or declining to do so. Whatever it is we thought we'd be seeing, I don't imagine we expected that the court would become even more remote and aloof, just as some of its members are becoming larger than life.

Exhibit A in this respect are the comments this week of Justice Clarence Thomas, whose book tour seems to have brought out in equal measure his warm, gregarious and snarling, contemptuous sides. According to U.S. News and World Report's Washington Whispers, Thomas told a crowd in Michigan that the reason he doesn't speak up at oral argument—he hasn't uttered a word, in fact, since Feb. 22, 2006—is that oral argument shouldn't be about the justices speaking. Of course, Thomas was more subtle. As he put it, "[M]y colleagues should shut up!"

He later said he'd chosen those words for their "shock value," but went on to add, "I think that they should ask questions, but I don't think that for judging, and for what we are doing, all those questions are necessary." Thomas then expanded on his colleagues' self-indulgent need to talk at what is, after all, called oral argument, with this analogy:

Suppose you're undergoing something very serious like surgery and the doctors started a practice of conducting seminars while in the operating room, debating each other about certain procedures and whether or not this procedure is this way or that way. You really didn't go in there to have a debate about gallbladder surgery. You actually went in to have a procedure done. We are judges. This is the last court in a long line in our system. We are there to decide cases, not to engage in seminar discussions.

Justice Thomas is apparently of the view that there is no educative or public role for the court to play at these sessions. The court is there to render a decision, the way a machine might pop out your Snickers bar, and "debate" and "discussion" only get in the way. That's a rather astonishing assertion about the only part of the Supreme Court's business done in public. Implicit is the notion that the American people—presumably the patient in this scenario—would be somehow bemused and terrified at having the court's work turn into a seminar on what the court's work is.

Thomas also seemed to be saying that oral argument doesn't much help the justices either. Evidently, once the cases get to the Supreme Court, there are no surprises left. "This is not Perry Mason," he added. Whoa. If the justices don't learn anything from oral argument, and it's too graphic and scary for the public, we should definitely cancel it. It's not like the marshals are getting all that much out of it.