Patterico's Pontifications

11/30/2007

Justice Thomas: “This is Not Perry Mason”

Filed under: Judiciary,Law — DRJ @ 1:50 pm

[Guest post by DRJ]

Courtesy of US News’ Washington Whispers column, Supreme Court Justice Clarence Thomas explained why he doesn’t ask questions during oral argument:

“There’s a reason why Supreme Court Justice Clarence Thomas doesn’t talk much from the bench: He thinks judges should be seen and not heard. “My colleagues should shut up!” he says. In a rare scolding of his fellow judges, Thomas Wednesday night took off after those who ask questions and debate cases out loud during oral arguments while defending his own, oft-criticized, silent treatment.

Asked at an event honoring Winston Churchill sponsored by independent Michigan school Hillsdale College if he would talk more from the bench to “give us relief” from the other chatty judges, Thomas said, “I don’t think it’s my job to give you relief.” Thomas noted that through history, most top judges rarely asked questions. “What’s changed? Have the laws changed? What’s changed? And why are all these questions necessary? That should be the question,” he demanded of the near epidemic level of judicial questioning at Supreme Court hearings.

He later characterized his “shut up” comment as simply “shock value,” but then dug deeper into the issue. “I think that they should ask questions, but I don’t think that for judging, and for what we are doing, all those questions are necessary,” he said. “You don’t have to ask all those questions to judge properly.”

Justice Thomas compared judging to surgery … and Perry Mason:

“Thomas compared judging to another profession where debate isn’t aired in public. “Suppose you’re undergoing something very serious like surgery and the doctors started a practice of conducting seminars while in the operating room, debating each other about certain procedures and whether or not this procedure is this way or that way. You really didn’t go in there to have a debate about gallbladder surgery. You actually went in to have a procedure done.

We are judges. This is the last court in a long line in our system. We are there to decide cases, not to engage in seminar discussions. Now, each of us has a different way of thinking about things. Some people like to talk it out. Some people enjoy the questioning and the back and forth. Some people think that if they listen deeply and hear the people who are presenting their arguments, they might hear something that’s not already in several hundred pages of records.

Thomas said that once the cases get to the Supreme Court, there are no surprises left.“This is not Perry Mason.”

A law blog actually waded through a year of transcripts (I thought I spent time blogging) to compile a list of all the questions asked and by whom. The total number of questions by all Justices was 2,244. Justice Thomas was the only Justice who did not ask any questions. He practices what he preaches.

– DRJ

38 Responses to “Justice Thomas: “This is Not Perry Mason””

  1. And then he wrote a fatuous self-serving memoir.
    Your point?

    David Ehrenstein (4f5f08)

  2. My point is that he is more intelligent than you, David. Its not DRJ’s point but it is mine.

    People who understand what is going on at the Supreme Court level agree that the questions being asked during oral argument are little more than posturing. That you do not understand his point is not surprising at all.

    SPQR (26be8b)

  3. David E.,

    I like to listen when Supreme Court Justices explain their reasoning.

    DRJ (a6fcd2)

  4. This is very interesting point he raises.

    The appearance before the Court, like all appeals courts, is called “Oral Argument.” Its the opportunity for the advocates to persuade the Justices as to their view of the case.

    Unless the Justices have a question to resolve an uncertainty, what’s the point of interrupting the advocate to play a game of 20 questions by posing ever-changing hypotheticals. Its not a Socratic-method law school class.

    Let the adovcates advocate for their clients, and then its up to the arbiters to decide. Questions should be an exception, not a rule.

    WLS (dfa1f1)

  5. Notwithstanding that the Justices have already made up their minds long before oral arguments, if the justices aren’t going to ask questions of the lawyers, why bother with the pretense of oral arguments at all? Aren’t all the arguments the attorneys make during oral arguments contained in their briefs? When’s the last time an attorney walked into oral arguments and announced that they had, just that morning on their way to Court, come up with a really novel legal point that was going to carry the day?

    stevesturm (d3e296)

  6. The issues in the lower appellate court are much more finely drawn than the Supreme Court’s usual run of cases. The judges may actually be struggling with such fine distinctions as an on-scene informant who called 911 about a person with a gun and gave his name and address compared to one who called in anonymously.

    There is something about Justice Thomas’s attitude towards questions during oral argument that rubs me the wrong way. I may be doing him an injustice but it gives me the feeling of a ruler decreeing instead of a judge exhausting every possible line of inquiry before making an unwelcome but unavoidable decision.

    nk (09a321)

  7. “People who understand what is going on at the Supreme Court level agree that the questions being asked during oral argument are little more than posturing. That you do not understand his point is not surprising at all.”

    I understand it perfectly. What you don’t appear to understand is that so much of this is theater.

    And little else.

    David Ehrenstein (4f5f08)

  8. Sorry to disagree, David. Our rulers are even more invested than we in our society and its survival. Say “sugarcoating” in some instances but in all instances hardheaded pragmatism intended for our continued existence.

    nk (09a321)

  9. But how is such an investment actually handled in what we laughingly refer to as “the real world” ?

    The “pragmatism” to which you refer often leads to deceit in its simplest and most effective form — silence.

    David Ehrenstein (4f5f08)

  10. SteveSturm,

    I think “oral argument” traditionally refers to the dialogue between litigants. The focus should be on the clients/attorneys who are pleading their case to the judges. The judge’s role is to listen to and consider the arguments. In my opinion, the point of oral argument is for the attorneys to prioritize the important issues in their case and to deal with the weak parts as best they can. It’s almost like jury argument because it lets you focus attention on your strengths and deal with your weaknesses. Perhaps it is an anachronism – some cases are decided without oral argument – but it’s part of the process that lets litigants have their day in court.

    I’ve never argued at the Supreme Court but at lower appellate levels, it’s very difficult when judges take over oral argument and monopolize the discussion. As the attorney, I have a better understanding of the facts and issues in this case than the judges ever could, and I want a fair chance to make my client’s presentation. I’m happy to answer questions but it’s disrespectful to my client to make his case the ping-pong ball in a match between judges who are competing over policy issues.

    Of course, judges should ask questions to clarify facts and legal positions but by the time a case gets to the Supreme Court, those matters have been carefully dissected and thoroughly briefed. If the justices don’t know the facts and the legal issues, they have not prepared well for oral argument. Law is supposed to be a reasoned application of legal principles, not a debate society.

    DRJ (a6fcd2)

  11. I do understand that your schtick, David, is theatre.

    SPQR (26be8b)

  12. They have clerks to dissect a case. Perhaps the only reason for oral areguments is to ascertain demeanor, or catch someone in a contradiction or outright lie.

    xraynova (4c3db3)

  13. The Justice System. Please.

    Rone Lewis (361d2c)

  14. ok, the “compile a list” link isnt working or is temp down? i am taking bets on who the biggest gas bag on the court is. i say its david souter, prolly followed by scalia responding to souter’s nonsense.

    james conrad (7cd809)

  15. Do these Oral sessions include material that was not made available to the Justices pre hearing?

    Dennis D (cdb678)

  16. It could, in the lower courts, although not likely in SCOTUS. Sometimes appellants will cite authorities or even vary their argument in their reply briefs which can only be countered by appellee at oral argument.

    nk (09a321)

  17. I agree that a lot of the questioning that occurs is posturing (Scalia is probably the worst in this regard), while other questions are incisive, and meant to provide insight into the arguments being made (Souter is very good at this.)

    Because it is possible to ask relevant, informed questions, one gets the sense that Thomas’ silence is based on the same kind of ignorance he displays in his opinions/concurences/dissents. He doesn’t ask questions because too many questions are asked — instead Thomas has absorbed the lesson of that old saying “Better to be silent and thought to be a fool, than to speak and remove all doubt.”

    p_lukasiak (e59d7d)

  18. The arrogance of you leftists is amazing. Have You read his memoir, Ehrenstein? Probably not, you aren’t smart enough to actually read something and then form an opinion. And Lukasiak, his opinions are poorly written? Really? Among those who have actually read them, you are in the minority. Although I actually think you suffer from typical liberal racism. If someone is black and conservative, they must be stupid.

    Smarty (3982db)

  19. Why should the judges ask any questions ?
    They hear what they need to hear, have vloumes of additional evidence and testimony, and then return to their offices while their clerks formulate an opinion. At the same time the Justices are searching for some political answer to cover their individual asses. The Constitution be damned.

    Edward Cropper (b5f8bc)

  20. For a great many years Supreme Court rulings were of little concern to the generla public. The legal community made note of them but they weren’t confabing on Page One. Brwon v. Board of Ed changed that. Suddenly the Supremes did something Really Big. From then on its decisions were noted more frequently. But in the last 20 to 30 years the court has been put in the spotlight every time anyone so much as coughs.

    “Why should the judges ask any questions ?”
    Indeed.

    But the press and public are asking as never befor, and its becoming harder and harder for the Supremes to stay out of the fray — especially as court apointments are now politicized (by all sides) as never before.

    David Ehrenstein (4f5f08)

  21. Oh yes, NOW politicized. Not that Ginsburg isn’t so far left she is in the parking lot.

    The supremes don’t exist to satisfy the curiosity nor the desires of the press or public, they have a narrow job to do. Unfortunately, some of them DO seek to please the press and public (even foreign public), and they are the ones who have caused the greatest damage to the courts. When the other side fights them, it is all conveniently called “Politicized” so that the blame can be spread around unequally, regardless of who is really in the wrong.

    Regarding questions, it is a shame that our legal system has turned into something where the talent of the lawyer matters more than actual justice. Does asking no question help avoid relying on which lawyer is more clever, in order to focus on the facts and whatever research the judge did before the hearing?

    Smarty (3982db)

  22. Oral arguments may sometimes make for entertaining theater, and/or for the justices to preen, but I see no serious value in them. If litigants have a good argument to make, they will have made it in their written briefs. IMHO, oral arguments should be abolished in all appellate courts.

    Tim K (93a92e)

  23. Tim K #22,

    That’s way too imperial, for me. It smacks of “nobility may be addressed by commoners only in writing”.

    Also, see my comments #s 6 and 16. They’re from an actual case I argued. If I had not been given the opportunity at oral argument to distinguish an anonymous informant from an identified one (citing dicta from Renquist of all people), I would have lost on the written briefs.

    nk (09a321)

  24. p_lukasiak – Given the view of Thomas you expressed above, why don’t you give everyone the benefit of your wisdom and present some of what you consider his most ignorant opinions?

    daleyrocks (906622)

  25. One more thing. When granting cert, SCOTUS picks the issue it will rule on not the litigants. Nothing wrong with keeping the litigants focused on what SCOTUS has ruled it wants to hear and not on what the litigants want to argue.

    nk (09a321)

  26. Sixteen years, and lefties are still bitter that they weren’t able to keep a black conservative off the Court with the Bork playbook. Rather pathetic of them, really.

    M. Scott Eiland (56ea55)

  27. 17: Here’s a contrary opinion of Justice Thomas’s work from a practicing lawyer:

    My own evaluation of Justice Thomas’ work is based primarily on his opinions in ERISA and employee benefits cases, the area of law in which I practice. It is a good test of jurisprudential acumen, for no member of the Court has much ERISA expertise. Ability to make sense when venturing into unfamiliar legal terrain is a vital skill for Justices, who are the final arbiters of all statutory and common law but cannot possibly possess antecedent mastery of the whole.

    By this criterion, Justice Thomas is one of the Court’s best jurists. His ERISA opinions are, with rare exceptions, clear, pithy and accurately reasoned. I particularly recommend for perusal his majority opinions in Hughes Aircraft Co. v. Jacobson (1999), which swept away years of confusion about the meaning of ERISA’s exclusive purpose rule, Egelhoff v. Egelhoff (2001), which strengthened and clarified ERISA’s prohibition against state interference with employee benefit plan administration, and Aetna Health Inc. v. Davila (2004), which reduced the murkiness of the Court’s conflicting rulings on the scope of ERISA preemption, his dissents in John Hancock Mutual Life Ins. Co. v. Harris Trust & Savings Bank (1993) and Varity Corporation v. Howe (1996), and his concurrence in Raymond B. Yates, M.D., P.C. Profit Sharing Plan v. Hendon (2004), where he catches a fellow Justice in egregious circular reasoning and displays his talent for close reading of the statutory text. I don’t think that any fair observer, including one who disagreed with Justice Thomas’ conclusions, can deny that he argues well and writes forcefully. The contrast with many of his colleagues’ blurry, meandering forays into employee benefits law is striking.

    If you think Thomas’s opinions (or “concurences”) show “ignorance,” please defend your assertion by explaining what was ignorant about this opinion, or this one, or this one, or this one, or this one, or this one, or this dissent.

    Stuart Buck (2cfe23)

  28. nk, I’ll admit there may be extremely rare cases in which the outcome was changed by oral argument–maybe one in a thousand–but I don’t think it happens often enough to justify the practice. And my thinking couldn’t be farther from the notion of “nobility may be addressed by commoners only in writing.” I was thinking that the practice has more to do with the judges’ egos than with the correct legal resolution of the case.

    Tim K (93a92e)

  29. it’s supposed to be an oral argument similar to the defense of a thesis or dissertation, not a reading from a fixed script, otherwise you could skip the trip to washington. the primary purpose of questions from judges to lawyers is to cue the lawyers where the judges’ concerns are, what needs to be shored up if the lawyer wants to win. i’ve appeared before a few sphinxlike judges, hate ‘em. most judges are good at letting me know what they’re thinking.

    assistant devil's advocate (bff5d8)

  30. 17: Here’s a contrary opinion of Justice Thomas’s work from a practicing lawyer:

    anyone who claims that the Social Security Trust Fund is a myth — well, lets just say that you’ll have to find someone who is credible before I bother to consider their other opinions.

    p_lukasiak (e59d7d)

  31. ADA,

    I think your comment provides very good reasons for questions from judges, especially in lower appeals courts, and I agree questions are necessary and appropriate at times. But does that mean every judge should ask questions, let alone multiple questions, during oral argument? That seems especially suspect given the limited duration of Supreme Court arguments.

    In addition, unlike other appeals courts, the Supreme Court designates the issues on appeal. The issues are generally narrow and very specific, and the attorneys who practice before the Court are almost always experienced Supreme Court practitioners. It’s a rare case where the attorneys don’t know what the Justices are interested in hearing.

    DRJ (a6fcd2)

  32. p_lukasiak #30,

    Please clarify. Are you saying there is pool of government money that has been set aside in a Social Security Trust Fund?

    DRJ (a6fcd2)

  33. lukasiak, that was a nonsensical comment on your part.

    SPQR (26be8b)

  34. “anyone who claims that the Social Security Trust Fund is a myth”

    That would be everyone. You really don’t think there is anything there but IOU’s do you?

    buzz (e09efa)

  35. p_lukasiak – lets just say that you’ll have to convince people of your credibility before they bother to consider your opinions. So far, you’re doing a piss poor job on this blog, IMHO.

    daleyrocks (906622)

  36. There isn’t anything wrong with Justice Thomas’s approach to oral arguments. I think there is reason for concern, however, because there are people who say that he simply goes into the Courtroom and takes a two hour long nap. A former teacher of mine once went to oral arguments at the Court and saw Justice Thomas with his chair reclined and his eyes closed for 30 minutes straight while arguments were going on. On the other hand, he is often described as joking alongside Justice Breyer (who sits immediately to his right after the seating shakeup that ensued in 2005.) Also, Justice Thomas has spoken during oral arguments in the past, but the last time he did that was in February 2006.

    Kedar Bhatia (b3a04b)

  37. Lukasiak — it doesn’t enhance your own credibility to make unfounded charges of “ignorance” and then fail to offer any reason or evidence in support. For the second time, can you look at the opinions that I linked, and explain where Justice Thomas seems to be ignorant?

    Stuart Buck (2cfe23)

  38. Jack Balkin of Yale Law School says, “After taking the bench Justice Thomas quickly disproved any doubts about his abilities as a jurist; he has proved himself to be one of the theoretically interesting Justices on the Supreme Court.”

    In the comments, Sandy Levinson (another quite liberal law professor) says, “I’m certainly not a fan of Justice Thomas, but I agree with Jack that he has more than acquitted himself in terms of displaying whatever we mean by ‘legal competence.’ I disagree with many of his decisions, some of which I think are quite dreadful in the vision they display of America’s future, but that is neither here nor there with regard to deciding whether he is smart enough to be on the Court. He is.”

    Stuart Buck (2cfe23)


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