Yesterday’s Los Angeles Times carried an article marking an unusual milestone: U.S. Supreme Court Justice Clarence Thomas’s fifth anniversary of sitting in silence during oral argument while his eight colleagues pepper advocates with questions. According to the article, Justice Thomas has explained his refusal to ask questions in the following terms: “the oral arguments are unnecessary to deciding the cases, and perhaps even a sideshow. The justices rely on the written briefs and the lower-court opinions in making their decisions.” The article quotes Thomas as saying: “‘So why do you beat up on people if you already know? I don’t beat up on them. I refuse to participate. I don’t like it, so I don’t do it.’” Justice Thomas’s views are not unlike those of Professor Myron Moskowitz of Golden Gate University law school, who recently proposed abolishing appellate arguments in California, as we discussed here.
The Times article caused us, as appellate advocates, to reflect upon and appreciate the fact that none of California’s Supreme Court justices follow Justice Thomas’s lead. We know from experience that all of the justices ask frequent and insightful questions at argument, and that these verbal exchanges are an important and integral part of appellate advocacy, a topic we discussed at length in this post. Besides, as an advocate, nobody likes a “cold bench.” That is, virtually all appellate lawyers would agree that it is greatly preferable to spend an entire argument responding to challenging questions from the bench than to deliver an uninterrupted speech.
UPDATE: This article from NPR identifies a number of other reasons that Justice Thomas has given for his silence at oral argument, including his preference for learning by listening and his early difficulties with public speaking because of the accent he had as a child.
