Monday, October 26, 2009

The silence of the justice

On Friday, Associate Supreme Court Justice Clarence Thomas made one of those offhand, seemingly innocuous statements that have a way of revealing more than was intended. Considering the comment’s place in the decision-making process of a Supreme Court Justice … maybe disturbingly more than was intended.

Jay Reeves of The Associated Press reported that Thomas, who spoke before a group of law students at the University of Alabama on the 18th anniversary of Thomas’ swearing in as a Justice, said that he and the others on the Supreme Court usually know where each of them stands on the cases that come before the court, by virtue of reading the legal briefs of the lawyers there to make oral arguments — the oral arguments fundamental to the American legal system.

What’s so concerning is the idea that at least one of the Justices of the nation’s highest court seems to regard the oral tradition of law as problematical — seems to be comfortable relying on legal briefs to the exclusion of the human factor of dialogue and personal appeal that help make the Supreme Court what it (ideally) is: the last legal recourse when more mechanistic, procedurally-driven interpretations of the law have failed, sometimes in cases in which a second second look is warranted.

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Thomas, apparently responding to someone’s question about whether the court uses questions to influence the opinions of fellow members of the court, dismissed the notion out of hand.


“All nine of us are in the same building," he said. "If we want to sway each other we know where we are. We don't need oral arguments to do that. It doesn't make any sense to me."

Thomas also called for other Justices to be quiet during oral arguments, and took issue with the practice among other Justices to engage in the back and forth of oral argument that’s both a high court tradition and foundational to American law.

“[W]hy do you beat up on people if you already know [what your position is]? I don't know, because I don't beat up on 'em. I refuse to participate. I don't like it, so I don't do it,” Thomas said.

(It was a variation on something he said in November 2007 at a speech in Michigan in which Thomas said plainly, “My colleagues should shut up! … I don't think that for judging, and for what we are doing, all those questions are necessary.”)

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The phrase “I refuse to participate” reveals a lot about Thomas’ presence in the transcripts of Court business going back to the previous administration. Thomas has long been the court’s silent Justice; Reeves reports that Thomas “hasn't asked a lawyer a question during arguments in nearly four years.”

It’s curious, then, that the Justice who makes the least use of the interrogative potential of robust oral argument appears to be so ready to dismiss its importance.

Cut to the chase, Justice Thomas?

Maybe not. Abdul, commenting on the story at reason.com, makes the justifiable point that for some court business, oral arguments would amount to a lawyers’ filibuster, a lengthy belt-and-suspenders event coming on the heels of those legal briefs the Justices would have already read:

“Justice Thomas is talking about appellate hearings, where the oral argument is a few hours long at best, and there are usually two thorough briefs from the opposing parties, and hundreds of Amicus briefs from third parties interested in the outcome.”

Still, we might be more receptive to the idea if it came from one of the more active members of the court.

James, at reason.com, said it was “rather disconcerting how Thomas would just sit there daydreaming [while] the other justices engaged the attorneys. Kind of like the kid in third grade who just sits at his desk with his head in his hand ...”

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Maybe Justice Thomas is intellectually bored by variations on a theme he’s seen to distraction. “There are things you learn after 18 years,” he said Friday. “You’ve seen just about all that you’re going to see. Most cases are permutations of the same issue.”

While that may be true in the grand scheme of things, there are enough distinctions from case to case to warrant a focus on those particulars — the better to resist one-size-fits-all decisions that fail to account for the specifics, or decisions that rely strictly on the letter of law at the expense of its spirit.

You don’t have to look back that far to see how that’s possible.. On Aug. 17, the Supremes voted 6-2 (Justice Sonia Sotomayor then not seated yet), to order a Georgia federal district court to consider and rule on whether new evidence "that could not have been obtained at the time of trial” should be introduced in the case of Troy Anthony Davis, almost 20 years to the day after the murder of which he was convicted and imprisoned, perhaps unjustly.

The SCOTUS decision followed years of nonstop exposure in the media, and, more recently, a torrent of grassroots protests spearheaded by Amnesty International.

The court agreed to remand the case despite the dissenting votes of two justices, Antonin Scalia (who wrote the dissenting opinion) and … Clarence Thomas.

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In their dissent, Scalia and Thomas adhered to the principles of the Antiterrorism and Effective Death Penalty Act (AEDPA), passed by Congress and intended to limit death-row prisoners to one set of appeals in federal court — to, in effect, clear the glide path to execution, new exculpatory facts be damned.

Hear newly-discovered evidence? Consider new perspectives from the lawyers arguing Davis’ case? Nah. “We don't need oral arguments to do that.”

Efficiency in doing the court’s business is important, and endless oral arguments can do as much to circumvent justice as to ensure it. But there are reasonable questions: If the briefs are generally all that’s needed to come to a decision, why engage in oral arguments at all? How do you learn if you don't ask any questions, if you sit silent as the Sphinx for almost four years?

As Justice Thomas’ very appearance before the law students suggests, sometimes documents aren’t enough to get your point across. The law — a distillation of human interaction — requires human interaction to work. Whether it’s made before a group of law school students or a death-penalty case before the highest court in the land, the personal appeal has no substitute.
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Image credits: Thomas: Public domain. The Supremes: Reuters/Jim Young. Troy Davis: Georgia Department of Corrections.

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