The responses to Thomas' silences often are critical or apologetics that have such critical responses in mind. For instance, the implication is made that Thomas is a dope, just following Scalia. But, some critical responses are not as much derogatory but disappointed. I think this is a useful approach, at least one potentially more productive.
One article cites a law review article, "Why Justice Thomas Should Speak At Oral Argument," and it suggests that -- contra to some -- that oral argument is not basically useless ceremony:
For good or ill, Thomas provides a different voice on the Court, one that repeatedly is different from the other conservatives (who each have their own nuances, though they sometimes are lumped together). As with Justice Sotomayor believing that public interviews and appearances are an important part of her job, since they inform the public, oral arguments are one way to insert that voice into the public dialogue and affect the development of judicial precedent. The voice still is affecting the law, but in a troublesomely incomplete way.
Judgments are affected in some fashion (if not who wins or loses, but how they did, which is important for future cases) by how oral arguments go. As someone else noted, briefs can be written, but that is not the end of the line. The airing out matters. Justices can discuss things behind the scenes, but repeated analysis by court reporters suggests oral arguments provide a more complete way to air out the details. It also provides advocates on both sides to take part.
Thomas supporters should be upset that his insights, which they so respect, are not as much a part of it. But, I think, a core problem is that these people don't expect them to be taken seriously anyhow. So, who cares, right? This is too pessimistic and those who point out Thomas has affected Scalia's judgment at times alone shows why.
Appellate courts have multimember panels for a reason. They have oral arguments for a reason. Not just for ceremony. If one or more do not fully do their jobs, it hurts the overall process.
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* The last time Thomas asked a question underlines the value of having each justice available to flag potential points. It also shows that it can be done politely and unobtrusively. A bit of symmetry: this also was the first opinion of Justice Alito.
One article cites a law review article, "Why Justice Thomas Should Speak At Oral Argument," and it suggests that -- contra to some -- that oral argument is not basically useless ceremony:
"By removing himself from oral argument, Justice Thomas' opinions do not benefit from the full adjudicative process designed to test theories in open court," Karp wrote. "Many of his opinions, therefore, read less like the product of actual litigation, and more like constitutional commentary." Rattling off other unorthodox views Thomas has taken, Karp added, "Justice Thomas' revision of the constitutional order emerges from his chambers without exposure to public debate." Before 2006, when Thomas did on rare occasion ask questions, Karp also noted, they sometimes had powerful effect. (Read the related article for more on one exchange.)[The law review article -- a worthwhile read -- also cites another concern, that the silence tarnishes his reputation, including regarding his personality, a personality that comes off somewhat differently when people actually hear him talk in public; C-SPAN periodically airs such events. Cf. The interview on Q&A that I cited in a previous post that several people saw in a negative light.]
For good or ill, Thomas provides a different voice on the Court, one that repeatedly is different from the other conservatives (who each have their own nuances, though they sometimes are lumped together). As with Justice Sotomayor believing that public interviews and appearances are an important part of her job, since they inform the public, oral arguments are one way to insert that voice into the public dialogue and affect the development of judicial precedent. The voice still is affecting the law, but in a troublesomely incomplete way.
Judgments are affected in some fashion (if not who wins or loses, but how they did, which is important for future cases) by how oral arguments go. As someone else noted, briefs can be written, but that is not the end of the line. The airing out matters. Justices can discuss things behind the scenes, but repeated analysis by court reporters suggests oral arguments provide a more complete way to air out the details. It also provides advocates on both sides to take part.
Thomas supporters should be upset that his insights, which they so respect, are not as much a part of it. But, I think, a core problem is that these people don't expect them to be taken seriously anyhow. So, who cares, right? This is too pessimistic and those who point out Thomas has affected Scalia's judgment at times alone shows why.
Appellate courts have multimember panels for a reason. They have oral arguments for a reason. Not just for ceremony. If one or more do not fully do their jobs, it hurts the overall process.
---
* The last time Thomas asked a question underlines the value of having each justice available to flag potential points. It also shows that it can be done politely and unobtrusively. A bit of symmetry: this also was the first opinion of Justice Alito.