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The Silence of Justice Thomas is overrated

The Huffington Post The Huffington Post 3/03/2016 Ralf Michaels

On Monday, Supreme Court Justice Clarence Thomas asked a question in oral argument.
Only in a country obsessed with spectacle could this make the news.
We are that country. For one day, Clarence Thomas' few words seemed to be the most important event. The mere fact that Justice Thomas had spoken made it to the front page of the New York Times and the Wall Street Journal, to name just two of countless media outlets. Few reports cared to tell us what the question actually was (or the fact that Justice Thomas asked some follow-up questions). The very fact that he had spoken was enough. Journalists became giddy over the Justice's first words the way parents react to their child's first words.
Admittedly, these were indeed the Justice's first words, in a long time. Justice Thomas had not spoken in more than a decade. The last time he had asked a question (as every news report reminds us) was February 22, 2006. Three years ago, he apparently made a joke during a hearing, but people could not understand what he said. The rest had been silence.
Why was he silent for so long? Justice Thomas himself has given a number of reasons, ranging from personal (shyness over his accent)--to procedural (oral arguments should be abolished)--to etiquette (when lawyers speak it is respectful to listen).
His most interesting reason, however, had to do with the institution of the Court and the demeanor of his colleagues. Justice Thomas complained, in essence, that his colleagues use oral argument for grandstanding. "We look like 'Family Feud," he said in 2000. And in 2013 he conceded that, although he did not like the grandstanding, he could not do anything about it.
This is where it gets interesting. Thomas rightly suggests that we have turned oral argument at the Supreme Court into a spectacle. In Versailles in the times of Louis XIV, extraordinary attention was paid to everything the sun king did--"his need to sleep and to sleep around, what he ate and what he defecated, his inescapable aging and his debilitating gout." We have turned the Supreme Court Justices into our kings, and we pay similarly exorbitant attention to every little thing that goes on in the courtroom and beyond. What was the tone in which Justice Kagan asked the question? Did Justice Scalia clench his fists when he sat down? Was Justice Ginsburg furious? Did Justice Breyer whisper to his neighbor? Was Justice Roberts looking at the parties or was he gazing into the distance?
Most Justices seem to revel in the attention we pay not just to every one of their words but also and actions. Justice Scalia, who just died, was the starkest example of this. Justice Thomas, although he has often been considered close to Scalia, could not be more different in this regard. He rejects the spectacle. His writing style is boring. His reading voice is, too. And his questions have, until Monday, been absent. "I don't ask for entertainment," he said (suggesting implicitly that this is what his colleagues often do). His silence may have been ill advised in many ways, but it can be seen as a small act of rebellion against what the institution has become.
And this is where the irony comes in. Justice Thomas' refusal to take part in the spectacle has become a spectacle of its own. His silence is now what Justice Thomas has become most known for--more than the opinions he has written, more than his own judicial philosophy, more perhaps even than his close (and often exaggerated) proximity to Justice Scalia's views. Consequently, the silence has become a signifier for all kinds of things--his refusal to play along, his arrogance, his bitterness, his apparent lack of interest.
While Justice Thomas was silent, the pundits were incessantly talking. There has been the most bizarre of things--a veritable debate over Thomas' bench silence. Each year, the anniversary of his silence was reported. The joke he made in court in 2013 created a whole flurry of attention. The fact that he now has spoken has been analyzed in myriad ways--a way for him to channel what the recently decease Justice Scalia would have asked, or as a sign of his liberation from Scalia.
Journalists have not just spoken about the Justice; they have also tried to speak to him. Like parents of a reticent child, journalists have at times encouraged Thomas to speak up, at times chided him for not doing so. Adam Liptak, in the New York Times, described it as a pity that Justice Thomas did not speak more in court, assuming he would have important things to say. Jeffrey Toobin, in the New Yorker, called his silence disgraceful and urged him to do his job. Many others joined on one side or the other.
This is not just incredibly condescending. It is also beside the point. The silence of Justice Thomas (like that of Marcel Duchamp) is overrated. Maybe Justice Thomas' silence had no meaning other than that he did not think of a question that would have been useful. Maybe the question he asked now was the first one that he thought of as useful and that nobody else asked. For us, it should not matter. Really, both silence and asking a question are just that. They are no big deal. They are not important. They are not what the Court is about.
Jeffrey Toobin argued that Justice Thomas' silence was a sign of disrespect to the Court. But really, the disrespect lies in our obsession. Treating the Court as a spectacle is a disrespect for the task the Court has to fulfill. Treating Justice Thomas' silence as a spectacle is a disrespect for the way in which an individual Justice attempts to fulfill it. We owe it not only to the Court and its Justices, but first and foremost to ourselves, to keep our focus on the substance of what the Court does. Everything else turns the Court into a spectacle, and both it and we suffer from it.
Whatever else one thinks about Justice Thomas, he deserves credit for his refusal to take part in this development. Now that he has asked a question, maybe the rest of us manage to move on, too.

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