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Anyone who follows the actual work product of the Supreme Court knows that oral argument has no correlation to quality of legal reasoning or sharpness of thought. Focusing on whether Justice Thomas has or has not asked questions is a red herring.
What counts is not questions from the bench, but the written word of the opinions. For many decades, Justices rarely asked questions and oral arguments would often go long stretches without any questions. In fact, it was Justice Scalia’s arrival that spurred the no-holds-barred questions and answers that are a feature of today’s oral arguments.
But the appellate review of the Supreme Court does not serve the same function as trial courtrooms, where the lawyers and their antics dominate the proceedings. The Supreme Court focuses mostly on the written briefs of the lawyers, the text and history of the Constitution, and its own precedents. The lawyers contribute very little in oral argument to the Supreme Court’s deliberations.
Just because Justice Thomas doesn’t ask many questions from the bench has nothing to do with his engagement with the cases or the power of his opinions. Thomas has written some of the Court’s most powerful dissents and concurrences and he is now calling for a re-examination of the judiciary’s acceptance of the massive administrative state.
Thomas has written prominent opinions on federalism, affirmative action, wartime, gay rights, and the executive in wartime, among others. He has reached millions in his opinions, autobiography, speeches, and articles. Asking questions at oral argument only feeds DC journalists’ needs for soundbites and quotes for their daily articles — it has little to do with the substance of constitutional law.
But perhaps Thomas was moved to ask questions because he understands what lies in the balance with Justice Scalia’s departure. He spoke in a case involving whether an individual can lose their right to bear arms not because they committed a violent felony, but because they had engaged in reckless conduct. As Justice Scalia wrote the majority in Heller v. District of Columbia, a 5-4 case, his replacement could spell the end of the understanding of the Second Amendment as protecting an individual right to bear arms.Published in