Clarence Thomas: Let’s face it, Q&A during oral arguments isn’t helpful

posted at 8:46 pm on April 6, 2012 by Allahpundit

I don’t agree, but I’d never fault a judge for being eager to listen.

“I don’t see where that advances anything,” he said of the questions. “Maybe it’s the Southerner in me. Maybe it’s the introvert in me, I don’t know. I think that when somebody’s talking, somebody ought to listen.”…

He said the lawyers presenting their cases are capable and don’t need guidance from the justices: “I don’t need to hold your hand, help you cross the street to argue a case. I don’t need to badger you.”…

“We have a lifetime to go back in chambers and to argue with each other,” he said. “They have 30, 40 minutes per side for cases that are important to them and to the country. They should argue. That’s a part of the process.

“I don’t like to badger people. These are not children. The court traditionally did not do that. I have been there 20 years. I see no need for all of that. Most of that is in the briefs, and there are a few questions around the edges.”

He hasn’t asked a question from the bench since 2006. Here’s my problem: Wouldn’t oral arguments be nothing more than a regurgitation of the briefs if the Court didn’t ask questions? He’s right about some of the justices using Q&A to help the lawyers “cross the street” — go look at how the liberals bailed out Verrilli early on last week when he was struggling — and the pace of the questioning is frequently ridiculous. According to an NYT piece published last year, from 1988-2008, the Court averaged 133 questions per one-hour argument. No doubt part of the badgering is simply the Supremes having fun toying with the lawyers, but I’ve got to believe Q&A is a more productive use of their time than sitting there while people read from prepared remarks that the justices themselves could read in one-fifth the time. Turning oral arguments into a speech-making spectacle would reduce the process to something almost ceremonial, where the Court shows up and gives the parties a thrill by letting their lawyers have an hour in front of SCOTUS to blather. Although, as I think about it, maybe oral arguments are already largely ceremonial. With all the briefs they have to sift through and all the backdoor politicking that goes on during deliberations, it’s hard to believe that anything said during Q&A ever amounts to a gamechanger. I think arguments are chiefly a way for the Court to face the public rather than for the lawyers to face the Court. After all, if everything was done on paper, with the justices issuing momentous opinions without ever showing their faces publicly, it’d make their job as a check on democratic majorities even harder.

Speaking of bad ideas about the Supreme Court, here’s one that TNR is kicking around:

I’ve never liked the idea of term limits for members of Congress, because if a member outstays his or her welcome voters get the chance every two or six years to hire a replacement. But term limits for judges—not just Supreme Court justices—make a certain amount of sense when those judges are appointed. For all their clairvoyance, the Founders couldn’t possibly have anticipated the impact that longer life spans would have on lifetime judicial appointments…

Another problem is that longevity has made the Supreme Court confirmation process extremely partisan and contentious—the stakes are just too absurdly high. The era of bitter Supreme Court confirmation fights—some say the era of bitter partisan politics in general—began in 1987, when Democrats defeated Reagan’s nomination of Robert Bork. That was a quarter-century ago, and if Sen. Ted Kennedy, D.-Mass., hadn’t played it pretty rough (“Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution,” etc.) then Bork, who turned 85 last month, would probably still be sitting on the Court.

Arguably the reason Bork never sat on the Court at all is precisely because the Senate knew he was looking at a lifetime appointment if confirmed. You might roll the dice on someone whom you know is limited to 15 years; if you’re worried that he might have, say, 35, the calculus is different. But never mind that. Imagine how much more of an unholy clusterfark presidential elections would be if we knew for a fact that a certain number of vacancies would open up on the Court in the next term. Imagine further that the judges whose terms were ending were part of the Court’s majority and that the election would therefore determine SCOTUS’s balance of the power going forward. Court appointments would become an enormous factor in the campaign, as much a proxy vote for two Supreme shortlists than for two visions of the presidency. And needless to say, any justice appointed by the winner would face tremendous political pressure to vote as expected. They already do, of course, but the uncertainty of vacancies opening up means no president is elected with any guarantee that he’ll get to remake the Court. Term limits would change that. If an appointee ended up voting differently than expected, it’d be a betrayal of a specific campaign promise on which millions of votes may have turned. If you think the Court’s politicized now, go ahead and give it an even bigger role in elections by tossing term limits in there. The countermajoritarian difficulty will be more difficult than ever.

Exit fun fact from Rasmussen: Just 15 percent of likely voters think the Court puts too many limits on the federal government compared to 30 percent who think it doesn’t put enough.


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Allah, on your first point. Two things, Southern men are by nature reserved in argumentative situations. Example. We will sit back and let you run your mouth at us and just kinda look at ya. When you reach a point we will gladly let you know. Second, when others are arguing points we sit back and let the participants do the damage, again up to a point. When the point is reached we have a tendency to kindly show you the door. Three actually, although this third is not necessarily confined to just Southern males. We are comfortable in our roles to allow others to do the questioning. You are probably going to ask the question we might have anyway. It does sound like you are starting to get yet another reason for this behavior. “With all the briefs they have to sift through and all the backdoor politicking that goes on during deliberations, it’s hard to believe that anything said during Q&A ever amounts to a gamechanger.”

Second point. I think I’m with you if my reading of your take is correct. Bad Idea.

Bmore on April 6, 2012 at 10:08 PM

…for gawds sake! Have some pity! LOOK what the war has DONE to HER!

KOOLAID2 on April 6, 2012 at 10:00 PM

LOL, no thanks, I have good eyes, I want to keep them!

22044 on April 6, 2012 at 10:12 PM

Schadenfreude on April 6, 2012 at 9:59 PM

Schadenfreude , this thread is a great example of why I love you. Not in a gay way, not that there’s anything wrong with that. More in a Brethren way. ; ) It was a surprisingly troll free thread, you might be on to something here.

Bmore on April 6, 2012 at 10:13 PM

Love you too Bmore, my e-brother, in a very Platonic way…before anyone says “get a room you two”, which is another thing I hate.

Schadenfreude on April 6, 2012 at 10:23 PM

I agree with Justice Thomas
A judge should listen to the arguments from both sides and then, with the positions on the record, the Justice should retire, review, and, then render their opinion!
They should not need to ask questions and really should not have to.
Which argument is Constitutional? Then rule.
If one side or the other is incoherent then by all means, ask a question. Otherwise they may simply be liking the sound of their own voices.
I agree with Justice Thomas.

Delsa on April 6, 2012 at 10:33 PM

My experience, although not at the SC level, is that lawyers like to get questions at oral arguments. It does no good to just stand there and recite a prepared statement. Might as well just file another brief. It’s much better (at least on the lawyer’s psyche) to be able to answer questions that the judges’ have after reading the briefs.

jdp629 on April 6, 2012 at 10:48 PM

I have given the term limit idea some thought and believe the idea of insulation from political pressure would be preserved if the term were an odd number of years like 9, 11, or 13 and phased in like applying to new justices as they are appointed and in such a way that no two justices were appointed in any calender year, or if a justice dies or is impeached his replacement would only complete the previous term and then could serve a regular full term if the next president chooses to nominate him or her for a full term with the advice and consent of the senate. the longer terms would likely be preferable because with a 9 year cycle and a president serving 8 years the complexion of the court might undergo large changes and introduce political instability.

dunce on April 6, 2012 at 10:52 PM

To the extent Thomas is stating that oral argument does not make much, if any, difference in the outcome, he’s right. Most appellate lawyers and judges will agree with that. The brief is far more important. On the other hand, the Supreme Court typically grants cert. in cases where there is something really worth questioning; otherwise, they wouldn’t exercise their discretion to hear the matter. So, IMO, oral argument is likely more important before SCOTUS.

Erich66 on April 6, 2012 at 11:03 PM

Oral arguments are just show boating. They should be dispensed with altogether in appeals. They are inefficient and written questions and answers would be more thoughtful and complete.

edshepp on April 6, 2012 at 11:05 PM

I know almost nothing about the law, but I have been asking myself this for decades. Why on earth all the chit-chat? Let the government make it’s case, then do the research and talk amongst yourselves to find clarity in the constitutional law history and precedent, and figure out if liberal nitwits wrote the precedent wrong and overturn it.

Jaibones on April 6, 2012 at 11:28 PM

Bmore

Schadenfreude on April 6, 2012 at 8:51 PM

..late to the dance on this one but, just off hand, I’d suggest you switch to decaf, Shade. Must be lightening on the keyboard.

;-)

The War Planner on April 6, 2012 at 11:34 PM

Cases like Obamacare need no questions, save one: Is it an enumerated power? Clearly, the answer in the instant case is: no. So, what is there to ask?

Malachi45 on April 6, 2012 at 11:47 PM

;-)

The War Planner on April 6, 2012 at 11:34 PM

I lost a bet, I think.

Bmore on April 7, 2012 at 12:08 AM

I watched, er listened, to all six hours of questioning on C-SPAN. All six! It could get a little frustrating when you were following an argument then it would get cut short by another question. The thing is the judges already know the argument so can switch to a different question. I didn’t necessarily, however, and it was an interesting exercise to have one part of my brain finish the lawyer’s thought while another was assimilating a new question and the direction it was going.

Now this is where tv habits come in. Remember all the talk about people who watch a lot of tv have shorter concentration spans? It’s actually true–If you watch a lot of commercial tv and your viewing is constantly interrupted. BUT those who do watch have an advantage in a different area, they can switch tasks easier, switch focus faster.

Watching/listening to oral arguments requires that quick focus switching ability as well.

But beware. One can go too far. And I don’t wait for commercials to end but switch channels constantly even during segments I’m watching. Click click click. It’s madness. So I make a point of watching a two-hour commercial free movie once a week with my hands tied behind my back and my butt glued to the chair to try and make up for it.

I don’t know what Thomas’ tv viewing habits are but perhaps he’s not aware that people can follow arguments interruptus as the lawyers themselves seem to do.

MaggiePoo on April 7, 2012 at 12:11 AM

“For all their clairvoyance, the Founders couldn’t possibly have anticipated the impact that longer life spans would have on lifetime judicial appointments…”

Sure they could have. It’s all relative lifespans after all. Back in the day, the Founders had shorter lifespans as did their contemporary Justices. Now, Legislators (and the general population) have longer lifespans just like our peers, our contemporary Justices.

Each generation produces judges who will validate law that will still span the subsequent generations. It’s proper, sound, and entirely within the insights and wisdom of our Founders. The hope, of course, is that each generation of SCOTUS will be true to the Constitution – a nation of Law and not Men – and not leave a legacy that will enslave their children.

AnonymousDrivel on April 7, 2012 at 12:17 AM

“For all their clairvoyance, the Founders couldn’t possibly have anticipated the impact that longer life spans would have on lifetime judicial appointments…”

Sure they could have. It’s all relative lifespans after all. Back in the day, the Founders had shorter lifespans as did their contemporary Justices. Now, Legislators (and the general population) have longer lifespans just like our peers, our contemporary Justices.

Each generation produces judges who will validate law that will still span the subsequent generations. It’s proper, sound, and entirely within the insights and wisdom of our Founders. The hope, of course, is that each generation of SCOTUS will be true to the Constitution – a nation of Law and not Men – and not leave a legacy that will enslave their children.

AnonymousDrivel on April 7, 2012 at 12:17 AM

Correct and well said. Life time appointments is not the problem. The problem is that the original federalist system created has been been changed so much that it has broken down. The balance of power between the states and the national government has been altered drastically in favor of national power. That is the problem. Repeal the 16th, 17th, 23rd and 26th Amendments and add an amendment to allow states to nullify with 3/4 of the legislatures voting so. That will fix it.

Malachi45 on April 7, 2012 at 12:36 AM

With all due respect to Justice Thomas, I always prefer a hot to a cold bench. I’ve made my best arguments, with the best organization and the best citation to authority, in my briefs. What I don’t know is how those arguments were received by the judges, and the only way I can even get a glimpse of this is through the questioning from the bench. If I’ve got a problem, I will find out pretty quickly, and hopefully I will be able to persuasively reinforce my briefing. Questions also give me the opportunity to find out if the Court has found authority other than that cited by the parties that the judges think relevant. Finally, oral argument gives me the opportunity to explain any argument that the judges misapprehend or misunderstand. Sometimes, even with all the briefing, they are human and make mistakes that I may be able to correct by answering a simple question.

As to term limits, I think they are the only way to return the Supreme Court to a majority originalist philosophy. A third of the federal judiciary, i.e., three Supreme Court justices, a third of each circuit and a third of each district, should be subject to either a retention election during each presidential election year or to renomination and reconfirmation by the newly elected President and Senate. Judicial accountability is what we currently lack at the federal level, and only by subjecting the federal judiciary to an accountability process will we rein in the activism that plagues us.

Consider the poster child for judicial term limits, Justice John Paul Stevens. Nominated by President Ford in 1975, and confirmed by a Senate whose members are now mostly deceased or out of government altogether (except Vice President Biden), there is no way to argue that Justice Stevens governed the United States judicially over the last twenty years of his time on the Court with the consent of the governed, as envisioned by the Declaration. A government of the people, by the people and for the people should include only judges who govern by the consent of the people.

Consent granted every twelve years provides both independence and accountability. A president who renominates and a Senate that reconfirms will have a substantial body of work to evaluate, and can hold a judge accountable for any misrepresentations made during the original confirmation process. Plus, the electorate tends toward judicial conservatism, hence the necessity of liberal jurists like Justices Sotomayor and Kagan disingenuously paying homage to originalist thought during their confirmations. Bottom line, the people should be able to hold their judges accountable for their judgments, not just their good behavior through the impeachment process.

Mongo Mere Pawn on April 7, 2012 at 1:10 AM

Oral arguments for a bench of Justices are nothing but an ego stroke for cunning linguists and an opportunity for a weak orator to lose a marginal case. If it’s truly a matter of THE LAW, then clever speaking and ready answers to rapid questions are meaningless. Justice Thomas is correct.

rayra on April 7, 2012 at 1:36 AM

Term limits for the Supreme Court would totally reverse the vision of the Founders, which has actually stood up pretty well for several hundred years. We’d be a lot better off if we stuck with the Founder’s original intent instead of buggering things up.

talkingpoints on April 7, 2012 at 4:30 AM

I’m pretty sure Justice Thomas doesn’t ask questions because he doesn’t need to, and for two reasons:
1. The other 8 will cover it regardless
2. Can’t have his commentary dissected by the LSM. Seems compelling to me.

TinMan13 on April 7, 2012 at 8:43 AM

From TNR quote: “I’ve never liked the idea of term limits for members of Congress, because if a member outstays his or her welcome voters get the chance every two or six years to hire a replacement.”

That’s pretty funny. Of course, when conservatives and tea-party activists did just that with some republicans who had been there too long, they were accused of using “purity” tests, and throwing hissy fits by the leftists like TNR and the MSM! What hypocrites.

happi on April 7, 2012 at 8:48 AM

Yeah, but Thomas never asks ANYTHING. If his colleagues speak too much, he speaks too little.
I do like the guy though

datadriver on April 7, 2012 at 8:55 AM

“What I don’t know is how those arguments were received by the judges, and the only way I can even get a glimpse of this is through the questioning from the bench. …”

Mongo Mere Pawn on April 7, 2012 at 1:10 AM

Not to be a smartas*, but don’t you get a pretty good glimpse when they render judgment?

Jaibones on April 7, 2012 at 9:22 AM

Shouldn’t the Constitution limit what the government can do? SCOTUS is there to help insure that?

racquetballer on April 7, 2012 at 9:46 AM

Shouldn’t the focus be the Constitution, all else left to the states?

racquetballer on April 7, 2012 at 9:51 AM

wow! That liberal4life fella seems to be living in some heads rent-free! He’s been trolling you long enough that you just can’t help it but see him even when he’s not there! lol

Durandal on April 7, 2012 at 9:59 AM

“With all the briefs they have to sift through and all the backdoor politicking that goes on during deliberations, it’s hard to believe that anything said during Q&A ever amounts to a gamechanger. I think arguments are chiefly a way for the Court to face the public rather than for the lawyers to face the Court.” – AlP

(EmPhaSis mine)

Hmmmmmm, where to begin …
I disagree with the good Justice Thomas, but for a different reason.
As one who has questioned and assessed society’s reprobates for decades (baby rapers/killers/molesters, cop killers, AND white-collar types who are just as bad, etc.), it helps to paint a portrait of both of the parties to the action. A seasoned examiner should be able to spot a feeble argument from the gitgo, briefs notwithstanding. IMHO it helps enormously to hear directly from the agents involved in the issue. How do they, in person, present and defend the case before the Court? Factor in the probability that the spokesman didn’t even write the brief he’s defending, how passionate IS this person? And does that passion corroborate or enhance their case?
To be sure, theatrics have no place in the Court (which is why cameras are still forbidden in Federal Courts), but one may surely get a handle on who is the face of the case? Justice Thomas may be comfortable relying upon the summations provided by his clerks, and other Justices are obviously biased from the beginning. Think: “Justice” Kagan NOT recusing herself from ObamaCare issue.
This all should fall under the purview of the Court IF its members have the integrity to step aside when the issue merits same.
I like to think that Justice Thomas is more curious than the impression he gave.
~(Ä)~

Karl Magnus on April 7, 2012 at 10:17 AM

I would have preferred a lifetime of Bork to a lifetime of Kagan. Just sayin……

AnnaS on April 7, 2012 at 10:18 AM

There is a word used to describe black folks like this man….

liberal4life on April 7, 2012 at 10:42 AM

I would have preferred a lifetime of Bork to a lifetime of Kagan. Just sayin……

AnnaS on April 7, 2012 at 10:18 AM

One of Bill Clinton’s first choices for his first Supreme Court nomination was…Hillary Clinton.

Now that is scary.

Del Dolemonte on April 7, 2012 at 10:44 AM

There is a word used to describe black folks like this man….

liberal4life on April 7, 2012 at 10:42 AM

Don’t you mean two words? The first word starts with a “U”.

Del Dolemonte on April 7, 2012 at 10:45 AM

There is a word used to describe black folks like this man….

liberal4life on April 7, 2012 at 10:42 AM

Don’t you mean two words? The first word starts with a “U”.

Del Dolemonte on April 7, 2012 at 10:45 AM

Would that be “Uncle —” or “Upp— ——”?
As long as Clarence votes with Justice Scalia, he’ll be cool.
~(Ä)~

Karl Magnus on April 7, 2012 at 10:55 AM

Different strokes for different folks.

“Drawing on my fine command of the English language, I said nothing.” — Robert Benchley

SomeCallMeJohn on April 7, 2012 at 11:09 AM

There is a word used to describe black folks like this man….

liberal4life on April 7, 2012 at 10:42 AM

Used by WHO ???
Only racists & bigots.

pambi on April 7, 2012 at 11:10 AM

Frankly if the Supremes uphold Obama’s socialized medicine idea AND if he gets elected again we are doomed. I am taking a fatalistic view of the present situation. If both occur we are effectively a euro-socialist nation and the majority asked for it.
I am currently looking for a nice gulch to wait out my final years in.

FireBlogger on April 7, 2012 at 11:10 AM

Q&A during oral arguments are certainly helpful for us, the American public, who want to listen in, who want to hear some of the reasoning and objections. Most of the public doesn’t have the time and training to work through the written briefs but IMO have the right to get a decent idea of what the cases entail via the Q & A. Long live the Q & A and I wish Justice Thomas would contribute with this.

Chessplayer on April 7, 2012 at 11:21 AM

I understand his point. Ruth Bader Geinsburg didn’t need to coach the gov’s lawyer on what to say. I respect someone who listens and then disregards the garbage.

flytier on April 7, 2012 at 11:29 AM

Oral arguments are necessary as our justice rests on a stated case, a stated defense and illumination of the law by how we live within its bounds. It is a necessary re-affirmation of the rule of law and is provided so that all arguments can be heard openly, presented by those who back them and defended by them, as well.

I cannot put myself into a seat of a judge, but do see that at the highest level, with so many briefs from not just the active participants but friends of the court, the verbal part may seem tedious. Still the justices are supposed to read the briefs and understand the full implications of all the laws involved and if a point or two that may seem obscure but vital are brought up in written statements, they can be elucidated during oral presentations. That role properly belongs at orals as it helps to demonstrate the capability, or lack thereof, of those giving presentations at understanding just what it is they are presenting.

For that is not ‘badgering’ but illuminating how well thought out a law is and if it can be said to have due process that can be stated and understood. That is the role of the SCOTUS: to ensure that there is due process under the Constitution and within the framework of laws. Questions may be numerous or rare, depending on each Justice, but they are chosen for their skills be they insightful introvert who never speaks or a blabbermouth who can only think well by speaking – that spectrum represents society and is part and parcel of due process as well.

Justice Thomas is part of that continuum of doomgivers from ancient times to present, and not all of them spoke often or at all, yet their words were enacted just the same.

ajacksonian on April 7, 2012 at 11:58 AM

There is a word used to describe black folks like this man….

liberal4life on April 7, 2012 at 10:42 AM

Indeed. I had covered all the words for you, in the first few comments.

Since light travels faster than sound, some people appear bright until you see them write.

You make rays indignant.

Schadenfreude on April 7, 2012 at 12:24 PM

It’s like cooking. Sure, the meat is in the brief, but the oral arguments are the part were the chefs have a chance to present their dish in an appealing and convincing way, and, importantly, to answer objections. Remember, a Supreme Court judgement is a dish that the citizens will be served for a long time.

claudius on April 7, 2012 at 12:37 PM

No doubt part of the badgering is simply the Supremes having fun toying with the lawyers, but I’ve got to believe Q&A is a more productive use of their time than sitting there while people read from prepared remarks that the justices themselves could read in one-fifth the time. Turning oral arguments into a speech-making spectacle would reduce the process to something almost ceremonial, where the Court shows up and gives the parties a thrill by letting their lawyers have an hour in front of SCOTUS to blather.

Allah may just be thinking out loud, but his thoughts are dreck.

1. Oral argument is already a speech-making spectacle. Attorneys prepare their arguments as if they will not be interrupted. Some benches are “hot” (meaning they question a lot), and some are “cool.” Attorneys script for cool benches while being aware they may, in practice, turn out to be hot.

2. Oral argument is a time for litigants to make their arguments, not the arguments the Justices wish litigants would make. Advocates have a right to have the record reflect the entirety of their position, and constant interruption by the Justices places judicial concerns over the right of the litigants to have the record reflect their own case presented in their own terms.

2. Thomas did not advocate banning Q&A during oral argument, so this rhetoric about “Turning oral arguments into a speech-making spectacle” is complete bull chips.

I think arguments are chiefly a way for the Court to face the public rather than for the lawyers to face the Court.

Or, oral arguments are the culmination of a litigant’s plea to the court for aid. They are the litigant’s last chance – and the first chance in front of the SCOTUS – to state their cases to the Court in person. Perhaps Allah would prefer that litigants not have personal access to the Court?

Jazz on April 7, 2012 at 1:39 PM

Del Dolemonte on April 7, 2012 at 10:45 AM

Would that be “Uncle —” or “Upp— ——”?
As long as Clarence votes with Justice Scalia, he’ll be cool.
~(Ä)~

Karl Magnus on April 7, 2012 at 10:55 AM

Both of the above, actually.

Funny how the late Senior Democrat US Senator got a Pass from his Party for being a Keagle in the KKK, and then also got a pass as a Senator uttering the “N word” live on national TV.

Had he been a Rethuglican, he would have been strung up.

Del Dolemonte on April 7, 2012 at 1:52 PM

There is a word used to describe black folks like this man….

liberal4life on April 7, 2012 at 10:42 AM

Two words: “Your honor.”

notropis on April 7, 2012 at 1:53 PM

Love you too Bmore, my e-brother, in a very Platonic way…before anyone says “get a room you two”, which is another thing I hate.

Schadenfreude on April 6, 2012 at 10:23 PM

Funny. (:

SparkPlug on April 7, 2012 at 2:27 PM

All in all, oral arguments are just for show.

ThePrimordialOrderedPair on April 7, 2012 at 2:38 PM

Second point. I think I’m with you if my reading of your take is correct. Bad Idea.

Bmore on April 6, 2012 at 10:08 PM

With you partner. I was raised to sit and listen when I want to learn. I’m with Judge Thomas (and you) in this respect.

itsspideyman on April 7, 2012 at 3:22 PM

I still remember the Dems, who argued that Reagan was senile at 72, the oldest elected President in the history of the country(!!!), were begging 90-year old Marshall to hang on another 4 years until Reagan couldn’t fill his seat. You, know 72 years is senile, but we want a 90 year old making wise decisions until he’s 94, right?

Axeman on April 7, 2012 at 3:25 PM

I think Justice Thomas would have a far different opinion of Q&A if the other Justices were as mute as he now is with respect to the current format.

He’s able to be the Sphynx precisely because of the activism of his peers in teasing out the Constitutional points the two sides are supposed to make.

That said, he’s not arguing for muteness — he’s arguing for a radically different way of hearing cases — in which the two sides front off against each other in debate, and they ask the zingers and they put their best Constitutional points forward in the allotted time.

He’s arguing that the jury (or, rather, the Jury) should be mute just as it is in every other courtroom in America today.

I’m not sure that’s a wise thing, for I think juries should be more proactive in seeking the truth than judges currently allow them to be.

unclesmrgol on April 7, 2012 at 6:03 PM

It’s a sad chapter in our history when an Obungler mercenary like freakish Kagan has to perjure to land a seat on the Supreme Court so she can then overlook her lies so as to avoid recusing her self so as to coach Obama mercenary Verrilli when the very legislation she pimped initially comes before the very court she now has infested.

viking01 on April 7, 2012 at 6:24 PM

Mr. Justice Thomas is correct. I remember once arguing a case in a state appeals court. I know completely different. Our side was clearly right. It was apparent early on that the panel agreed. They asked no questions. My client was p8ssed that I didn’t go on and on about his position. We won.

Happened another time in federal appeals court.

I also did some clerking for appeals judges.

I suspect that in 95+% of the times, the judges have made up their minds before argument, if they’ve studied the briefs.

Oral argument is there so the client believes it got its day in court and the lawyer can earn a healthy fee.

AcidReflux on April 7, 2012 at 6:47 PM

Here’s my problem: Wouldn’t oral arguments be nothing more than a regurgitation of the briefs if the Court didn’t ask questions?

I mostly agree with Justice Thomas on this one. It isn’t the regurgitation of the briefs, there are a lot of briefs by the time it gets to the SCOTUS. I’m willing to bet every single angle that could be presented has been presented in some form by the time of oral arguments. Be it through briefs, the appelate process or amicus curiae submissions.

Where I think oral arguments are worthwhile is to point out the absurdities and flawed logic. How could the Solicitor General get away with spending an entire day claiming that Obamacare was a tax not a penalty followed by two days of arguing the opposite? And he got called on it. Big time.

Happy Nomad on April 7, 2012 at 7:33 PM

From my limited understanding, Oral Arguments are the only time the justices ‘feel’ each other out amongst themselves. After the case is heard, they go back and do a very nice low key straw vote as to how the case should go. The Chief Justice then gives the assignments to write the majority and minority opinion. SO the upshod is: the oral arguments are really the judges arguing amongst themselves their points of view to their collegues as this is the ONLY time that they do try and PUSH the case a certain way. After the case is heard? Its so low key its ridiculous. The opinions after they are written are circulated for all to read and that’s when anyone can change sides. This is what is perceived to have happened with Kennedy and women’s health (abortion) case a few years back. He was in the majority to stop the abortions but after reading the minority case he switched. Nothing can be done at that point. Scalia doesn’t go storming into Kennedy’s office and say WTF? You were with us one minute and now you’re not. He gets notified by his clerk as the clerks do all the inter-office back and forth but even THAT is polite to the point of an edge.

athenadelphi on April 7, 2012 at 8:02 PM

I would argue that Justice Thomas is the best Justice on the Court today; his opinions are short, concise, simple and brilliant. When he wishes to make a point, he makes that point, period, and doesn’t feel the need to dress it up.

Dana on April 7, 2012 at 9:34 PM

I’m not sure why more information, rather than reading from a brief, is a bad thing? Having an issue in front of SCOTUS means there is a lot at stake. Why would we want to stifle the court, or those in front of it, from getting/giving all the info they need to make their argument?

ccrosby on April 7, 2012 at 10:09 PM

I don’t like term limits either, but I think something has to be done to minimize in at least a small way the advantages incumbents have over challengers. I’d like an amendment made which forbids Senators from holding chairmanships after their second term ends, and Representatives from holding them after their 5th or 6th. This would prevent these professional Congressmen from accumulating too much power, and would help generate at least a little more churn.

Texastoast on April 7, 2012 at 10:43 PM

In California state and federal courts, motions are generally decided on the briefs. Oral argument is more or less pointless. I’ve never seen a judge change his tentative ruling. Many federal judges will even take oral arguments off calendar because of the pointlessness of it.

The only time I have had oral argument matter is in (shudder) limited civil and lower courts, where the lazy judges don’t even bother to read the briefs. The decisions they make as a result are often terrible.

Oral argument at the appellate level do feature questions. These questions are SOMETIMES useful if the attorney is prepared for them, but the problem is that the attorneys are NOT prepared. It would be far better for judges to give attorneys, the day before oral argument, a list of “tentative questions” similar to a tentative ruling, so counsel could at least come prepared and with well-researched responses.

Firing from the hip, though, makes it very difficult to answer properly.

Last time I was in from of the 9th circuit, I thought of AMAZING answers on the drive home. During oral argument though? Not so much. You are on the spot and often the judges can be intimidating. If a question seems to be very stupid to you, you can’t necessarily fashion a diplomatic response in seconds off the top of your head.

The only time the questions really help is when you are an absolute expert on everything about the case and all the law remotely relevant to it. Then you can school the judges by giving them very good explanations to set them straight.

Again, being able to prepare for the questions would be a big help.

Oh and as for Thomas: he is correct. The Justices and their law clerks are going to do their own research and make their own opinions. They will probably ignore most of what the counsel says.

Questions could be a very valuable tool if presented in the fashion of “this is what I think, this is why I think it, now here is your chance to explain why I am wrong. go” which is really what the questions are, anyway.

kaltes on April 7, 2012 at 11:33 PM

Last time I was in from of the 9th circuit, I thought of AMAZING answers on the drive home. During oral argument though? Not so much. You are on the spot and often the judges can be intimidating. If a question seems to be very stupid to you, you can’t necessarily fashion a diplomatic response in seconds off the top of your head.

The only time the questions really help is when you are an absolute expert on everything about the case and all the law remotely relevant to it. Then you can school the judges by giving them very good explanations to set them straight.

Again, being able to prepare for the questions would be a big help.

Excuse my ignorance (not a lawyer, just your everyday average “Law & Order” viewer), but is there a reason why the court should make it “easy” for the litigators? Either side for that matter?

ccrosby on April 7, 2012 at 11:47 PM

… [A]ny justice appointed by the winner would face tremendous political pressure to vote as expected. They already do, of course … .

You can tell the quality and integrity of the Justice when their decisions are based on the law applied to the facts. The hacks on any court skew or misquote or selectively cite the law to get to the result they want.

Roberts, Scalia, Thomas, and Alito are not hacks.

slp on April 8, 2012 at 12:13 AM

It’s like cooking. Sure, the meat is in the brief, but the oral arguments are the part were the chefs have a chance to present their dish in an appealing and convincing way, and, importantly, to answer objections. Remember, a Supreme Court judgement is a dish that the citizens will be served for a long time.

claudius on April 7, 2012 at 12:37 PM

Excellent analogy.
And that, my friends, pretty much sums it up.
Anthony Bourdain v. Mario Batali.
I’ll bet on “Molto Mario” any day.
~(Ä)~

Karl Magnus on April 8, 2012 at 11:21 AM

Karl Magnus on April 8, 2012 at 11:21 AM

disclaimer, I did not read the previous posts, save this one.

Never-the-less I respectfully disagree. A SOTUS judge’s JOB is to distinguish between the “fluff” and the underlying substance of the meal. BY DEFINITION we are nominating people to the SOTUS based on their ideology. They are people and have their opinions. Strongly held too. Yes, oral arguments can occasionally change the mind of a less “principled” judge, but then, by definition, who would want them on the SUPREME court?? This isn’t a trial court we are talking about.

I am sure this argument has been made in the previous posts. I advise anyone who argued otherwise to go eat, on a day when they are truly hungry, at a french or nouveau (are they still in existence?) cuisine restaurant.

WryTrvllr on April 8, 2012 at 11:18 PM

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