[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.