Following up on this blog post, I want to note Ilya Somin’s observations of Clarence Thomas’s behavior at oral argument. To be sure, one swallow does not a summer make, and the plural of “anecdote” is not “data,” but I hardly imagine that the following is an exception to the rule where Justice Thomas is involved:
For what it is worth, I saw nothing to support Toobin’s claim that Thomas is disengaged and “not paying attention” during oral arguments. During the course of the argument (which was on a relatively prosaic statutory interpretation case), I saw Thomas confer with liberal justice Stephen Breyer some three or four times, and with Justice Scalia once. I believe I also saw him look up some points in what seemed to be the joint appendix filed by the parties (or perhaps one of their briefs). Obviously, I could not overhear what Breyer and Thomas were saying. Perhaps they were discussing the weather or making plans for lunch. But the timing of their interactions make it likely that they were talking about issues raised in questions asked or about to be asked by Breyer, or one of the other justices.
I only attended this one oral argument (which was the first one I have seen in recent years). However, the fact that Thomas often confers with Breyer during arguments is well-known to court watchers, and has been noted by such knowledgeable observers as Washington Post Supreme Court correspondent Robert Barnes. Thomas himself has confirmed that he sometimes suggests questions to Breyer, who then poses them.
Obviously, there is plenty of room for reasonable disagreement about the quality of Thomas’ performance on the Court. Critics can legitimately claim that he should ask more questions at oral argument himself. But Thomas has a reasonable counterargument when he suggests that the justices would do better to listen to the arguments of counsel rather than take up much of time of with their own points. This is in fact how oral argument was conducted in the early nineteenth century, in the days of John Marshall and Joseph Story.
Be that as it may, Toobin is wrong when he claims that oral arguments are “the public’s only windows onto the Justices’ thought processes.” In reality, the justices’ written opinions are far more significant “windows…onto their thought processes” and explain their views in far greater detail and nuance than oral argument questions do. Obviously, many of the opinions are difficult for nonexperts to follow. But the same is true of many oral argument questions, whose significance can only be understood by observers with extensive knowledge about the case.
I believe the short version of Professor Somin’s post is “no one should take Jeffrey Toobin seriously,” a point with which–of course–I wholeheartedly agree.