Yesterday marked eight years since the Justice last asked a question during oral arguments. Toobin finds that Thomas’ “behavior on the bench has gone from curious to bizarre to downright embarrassing”:
In his first years on the Court, Thomas would rock forward, whisper comments about the lawyers to his neighbors Breyer and Kennedy, and generally look like he was acknowledging where he was. These days, Thomas only reclines; his leather chair is pitched so that he can stare at the ceiling, which he does at length. He strokes his chin. His eyelids look heavy. Every schoolteacher knows this look. It’s called “not paying attention.”
His bottom line:
[T]here is more to the job of Supreme Court Justice than writing opinions. The Court’s arguments are not televised (though they should be), but they are public. They are, in fact, the public’s only windows onto the Justices’ thought processes, and they offer the litigants and their lawyers their only chance to look these arbiters in the eye and make their case. There’s a reason the phrase “your day in court” resonates. It is an indispensable part of the legal system.
But the process works only if the Justices engage. The current Supreme Court is almost too ready to do so, and sometimes lawyers have a hard time getting a word in edgewise. In question-and-answer sessions at law schools, Thomas has said that his colleagues talk too much, that he wants to let the lawyers say their piece, and that the briefs tell him all he needs to know. But this—as his colleagues’ ability to provoke revealing exchanges demonstrates—is nonsense. Thomas is simply not doing his job.
Damon Root calls this criticism “nonsense”:
I’ve attended a number of oral arguments in the past two years and I’ve routinely seen Thomas leaning forward, watching the lawyers (and his colleagues), and even conferring quite enthusiastically with both Justice Stephen Breyer (to his right) and Justice Antonin Scalia (to his left). In fact, during the first day of the March 2012 Obamacare oral arguments, which centered on whether an 1867 tax law barred the legal challenge to the health care law from going forward, I watched Thomas and Breyer together poring over a massive book that appeared to be a volume of the U.S. tax code.
What were they up to? It’s possible Thomas was suggesting a line of questioning for Breyer to use. After all, as Thomas told an audience at Harvard law school, he sometimes helps generate Breyer’s material. “I’ll say, ‘What about this, Steve,’ and he’ll pop up and ask a question,” Thomas said. “So you can blame some of those [Breyer questions] on me.”
Toobin is either himself guilty of not paying attention, or he is perhaps too eager to bend the facts in order to paint his opponents in an unflattering light.
Update from a reader:
An older gentleman in my office often leans back, tilts his head back and closes his eyes when listening. It was a bit disconcerting at first, but I soon learned that this meant he was listening, not the opposite. Of course, he would then ask questions or give instructions. But the posture described, even if accurate, does not necessarily signal disengagement. From the Anita Hill nonsense to the present comments on oral argument participation, people have seemed determined to give Thomas hell for everything other than what they should: his consistently wrong opinions.