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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Monday, February 14, 2011

Silent Thomas

[Update: As Rachel Maddow and others point out, Justice Thomas' off the court behavior has been troubling. It is unclear how much, since you don't expect him to act any differently either way, but failure to be fully upfront about such activities is quite troubling.

The appearance of impropriety matters, worsened by his separating himself from the public in ways such as not talking at oral argument and his wife's blatant partisan activity, and the general rules of propriety are for the good of all. In another case, a judge very well can be affected by such involvement even if one argues Thomas (or Scalia) would try the case the same either way.

And, big picture, the matter goes beyond any one justice.]

A NYT article reports the fifth year anniversary of Justice Thomas asking a question during oral arguments. Lyle Denniston a few years ago had this to say:
Well he’s two different kinds of people, at least from my perception. As a person, as a human being, he’s very warm. He laughs very easily. He’s very sensitive to people’s personal troubles and concerns.

He and his wife have reached out a number of times to people in not as good circumstances to help them out. He’s an uncommonly generous person for a person in such a high place.

But his approach to the law is very, very aggressive, a very – I call it iconoclastic. I mean, Justice Thomas would take a lot of the court’s constitutional jurisprudence and just throw it out and start all over.

For example, he doesn’t believe that the part of the constitution that keeps the government and religion separate should apply to the states at all. The states should be free to do what they want to accommodate religion.

He would – he would really make a revolution in constitutional doctrine if his ideas were followed. So – and there’s one other facet of him that I think is really unfortunate and that is his lack of participation in the give and take in oral argument.

I mean, most people who really understand the way the court works know that the oral argument is the first time the justices really get a chance to discuss seriously the issues that they’re deciding because when the case comes up in the first instance it’s a quick look to decide whether to hear it.

But when they come to oral argument and sit there for an hour, only an hour per case, that’s a very important moment at which they shape the agenda for the decision. And if you don’t participate at that point then you are not participating, at least not very actively, in shaping the agenda of how the discussion at least is going to begin on how you decide the case.

Now why he does not participate is not known to me. It’s unknown to most people and even who know him. But he doesn’t take part. And I think that’s a shame.
I agree. As the article notes, his atypical voice is left out of oral arguments, discussion of those views not given as much of a hearing and back/forth when they are only made in separate concurrences and dissents (sometimes, but not always, joined by Scalia and at times others). It also sends a lousy message, one that appears to be not totally off base -- he basically thinks "screw them" regarding his critics and even many who are fairly conservative, but not supporting his views. He has his little group of supporters to fall back upon, including his wife whose public activities might be acceptable on some level, but still is taken to an extreme of partisan political involvement.*

Not sure how bad this is as compared to the Scalia "clown/ass" approach, but something is lost. And, truly, I think it is unfortunate because of the stereotype it promotes. I find his judicial philosophy wrong in many ways, and intellectually lazy as well (the failure to take involve in orals underlines this -- a talking to oneself, a failure to interact with the other side and see your views are not quite as clever as obvious as you think), but still overall a worthwhile addition to the Supreme Court. The marketplace of ideas need forceful expressions of his side. Involvement in oral argument would help there.

A little would go a long way here, Justice Thomas.


* Scotusblog today summarizes the article linked: "Noah Feldman objects to the popular notion that the Justices should be insulated from political life. Feldman produces many historical examples to the contrary and argues that “the justices’ few and meager contacts with the real world do little harm and perhaps occasionally some good."

Fair enough and on some level I think it's okay that Thomas' wife has her Tea Party cause. At some point, however, there is a line that probably is crossed. To the degree things are more strict now in the past, but all things considered, not sure if that is a bad thing either. With the increase of governmental power and judicial control over it, the image and reality of judges being partisan is more troubling. The ultimate line is debatable.

Feldman adds useful perspective either way.