The Quiet Justice and the Constitution

 

clarence-thomasAnyone 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.

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  1. Larry Koler Inactive
    Larry Koler
    @LarryKoler

    Thanks, John. It seems this will be an interesting time for the court. Probably at least a year with just 8 justices.
    What will they do if Ginsburg decides to force the issue and she resigns quite soon?

    • #1
  2. Israel P. Inactive
    Israel P.
    @IsraelP

    I hope someone is collecting stare decisis quotes from the left so that we can bring them out as soon as people start talking about changing settled law.

    • #2
  3. EHerring Coolidge
    EHerring
    @EHerring

    A talker seldom thinks and a thinker seldom talks.

    • #3
  4. Pugshot Inactive
    Pugshot
    @Pugshot

    Larry Koler

    Thanks, John. It seems this will be an interesting time for the court. Probably at least a year with just 8 justices.
    What will they do if Ginsburg decides to force the issue and she resigns quite soon?

    If Justice Ginsberg resigns, the USSC would be fine. It would be back to an odd number of justices (7) and better able to avoid tie votes. It would restore the (slight) conservative balance – or at least what passes for a conservative balance with Justice Kennedy holding the “vote of power.” The USSC has had various numbers of justices throughout its history, and there’s nothing magic about 9. [For example, the Michigan Supreme Court, the Ohio Supreme Court, and the Wisconsin Supreme Court have only 7 members and they do quite nicely with that number.]

    • #4
  5. M.P. Inactive
    M.P.
    @MP

    I am trying to remain optimistic, but I believe we are living through the final days of this Constitution. The Court, White House and Congress will soon be dominated by Leftists, and the last vestiges of our founding document will be swept away.

    • #5
  6. jmelvin Member
    jmelvin
    @jmelvin

    Note here, that this reckless conduct is NOT even low level felony type of conduct, but misdemeanor level conduct.  This particular conduct has been deemed by legislatures around the country to be of such generally trivial nature (within the realm of crime) as to not warrant a loss of voting rights or a long term loss of freedom (with punishment often limited to the payment of fines or jail sentences that are months long and not years).  Punishment of a misdemeanor with the permanent loss of a recognized inherent right is egregious and unjust.  That type of punishment is rightfully left to felonious activity.

    • #6
  7. M.P. Inactive
    M.P.
    @MP

    Pugshot: If Justice Ginsberg resigns, the USSC would be fine. It would be back to an odd number of justices (7) and better able to avoid tie votes. It would restore the (slight) conservative balance – or at least what passes for a conservative balance with Justice Kennedy holding the “vote of power.” The USSC has had various numbers of justices throughout its history, and there’s nothing magic about 9. [For example, the Michigan Supreme Court, the Ohio Supreme Court, and the Wisconsin Supreme Court have only 7 members and they do quite nicely with that number.]

    I read his comment as pertaining to the political difficulty of having two open SCOTUS seats. The GOP is fighting an uphill battle trying to keep Scalia’s seat from being filled.

    Of course, if the Democrats win the White House and Congress this year, none of this will matter. They can pack the Court with as many Leftists as they want to guarantee every executive order Hillary issues will be found “Constitutional.”

    • #7
  8. The King Prawn Inactive
    The King Prawn
    @TheKingPrawn

    jmelvin:Note here, that this reckless conduct is NOT even low level felony type of conduct, but misdemeanor level conduct. This particular conduct has been deemed by legislatures around the country to be of such generally trivial nature (within the realm of crime) as to not warrant a loss of voting rights or a long term loss of freedom (with punishment often limited to the payment of fines or jail sentences that are months long and not years). Punishment of a misdemeanor with the permanent loss of a recognized inherent right is egregious and unjust. That type of punishment is rightfully left to felonious activity.

    As I said in another comment, the primary purpose of your criminal justice system seems to be removal of 2nd Amendment rights from as many citizens as possible.

    • #8
  9. Johnny Dubya Inactive
    Johnny Dubya
    @JohnnyDubya

    I really don’t like saying this, because I think crying “Racism!” is a province of the left, but I do believe criticism of Thomas’s reticence during oral arguments has a racial aspect.  I have read nasty comments from progressives focusing on this topic.

    And let’s not forget about Harry Reid, who said, “I think that [Thomas] has been an embarrassment to the Supreme Court.  I think that his opinions are poorly written.  I just don’t think that he’s done a good job as a Supreme Court justice.”

    He didn’t give a single example of a “poorly written” opinion.  Perhaps he hadn’t even read any of Justice Thomas’s opinions.  Perhaps he had prejudged them, based on an opinion of Thomas that had nothing to do with the justice’s legal skill.  One might call it “prejudice”.

    • #9
  10. Susan Quinn Contributor
    Susan Quinn
    @SusanQuinn

    John Yoo: 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.

    I hadn’t realize this was a relatively new phenomenon. Thanks for including it in your enlightening post.

    • #10
  11. Jerry Holisky Member
    Jerry Holisky
    @JerryHolisky

    The prevailing attitude of most lawyers working today – all these many years after the “hi-tech lynching of an uppity Black man” – is that Clarence Thomas is the dumb guy they put on the Court to be a reliable vote with Justice Scalia.  This of course was a meme developed by liberal activists more interested in achieving policy results through the courts (and therefore waging political wars over Republican nominees to the Supreme Court) than winning elections.  The media  dutifully assisted that effort and Justice Thomas’ legendary silence at oral argument fit their meme perfectly.  (He’s too dumb to do the job!)  Conservatives of color are well familiar with this game:  diversity of skin color, good; diversity of thought, not so much.  However,  when I read opinions in cases where Thomas and Scalia parted ways, I find myself more often persuaded by Justice Thomas. This is most likely because Thomas generally reserves the right to read the Constitutional text without judicial gloss, while Scalia’s more expansive view of stare decisis has him accepting some of that gloss – even if he wouldn’t have agreed with the case originally creating the precedent/gloss.  For 25 years on the Court, Thomas has been ridiculed as an Uncle Tom and a simpleton; yet he has not “evolved” or “grown in office” or otherwise wavered one iota in fidelity to his core principles or judicial philosophy.  Is there a more courageous man or woman in public office today than Clarence Thomas?

    • #11
  12. jmelvin Member
    jmelvin
    @jmelvin

    Jerry Holisky, you nailed it.

    • #12
  13. The Scarecrow Thatcher
    The Scarecrow
    @TheScarecrow

    All you Le Carre fans will remember how Smiley conducted an interrogation. Judge Thomas has reminded me of this kind of mind.

    • #13
  14. Larry Koler Inactive
    Larry Koler
    @LarryKoler

    M.P.:

    Pugshot: If Justice Ginsberg resigns, the USSC would be fine. It would be back to an odd number of justices (7) and better able to avoid tie votes. It would restore the (slight) conservative balance – or at least what passes for a conservative balance with Justice Kennedy holding the “vote of power.” The USSC has had various numbers of justices throughout its history, and there’s nothing magic about 9. [For example, the Michigan Supreme Court, the Ohio Supreme Court, and the Wisconsin Supreme Court have only 7 members and they do quite nicely with that number.]

    I read his comment as pertaining to the political difficulty of having two open SCOTUS seats. The GOP is fighting an uphill battle trying to keep Scalia’s seat from being filled.

    Of course, if the Democrats win the White House and Congress this year, none of this will matter. They can pack the Court with as many Leftists as they want to guarantee every executive order Hillary issues will be found “Constitutional.”

    Yes, M.P. This is what I was asking about. — The pressure could mount considerably. She might reason that the Republicans will win the White House soon and this may be her last chance to force another leftist onto the Supreme Court.

    What say you more informed court watchers?

    • #14
  15. Larry Koler Inactive
    Larry Koler
    @LarryKoler

    Jerry Holisky: Is there a more courageous man or woman in public office today than Clarence Thomas?

    Maybe only Ted Cruz at the federal level.

    At the state level: Scott Walker is also a very courageous person. And many others, I’m sure.

    But, Justice Thomas is a unique personality with steadfast character. He will do well in the history books.

    • #15
  16. Chuck Enfield Inactive
    Chuck Enfield
    @ChuckEnfield

    Israel P.:I hope someone is collecting stare decisis quotes from the left so that we can bring them out as soon as people start talking about changing settled law.

    I’m pretty sure stare decisis is latin for “do as I say and not as I do.”

    • #16
  17. Larry Koler Inactive
    Larry Koler
    @LarryKoler

    Chuck Enfield:

    Israel P.:I hope someone is collecting stare decisis quotes from the left so that we can bring them out as soon as people start talking about changing settled law.

    I’m pretty sure stare decisis is latin for “do as I say and not as I do.”

    Or: Do as I say and not as is written in the clear text of the Constitution.

    • #17
  18. Arthur Beare Member
    Arthur Beare
    @ArthurBeare

    Not quite to the point of the OP, but (for what its worth) I believe Justice Thomas is the best — that is the clearest — writer of the current justices: minimal “legalese” and no BS (he’s the anti-Kennedy).  His opinions are not as entertaining as Scalia’s, but I’ve found them more persuasive.

    • #18
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