IN WHICH I SYMPATHIZE WITH CLARENCE THOMAS….The Associated Press notes an anniversary:
Two years and 144 cases have passed since Supreme Court Justice Clarence Thomas last spoke up at oral arguments. It is a period of unbroken silence that contrasts with the rest of the court’s unceasing inquiries.
….Leaning back in his leather chair, often looking up at the ceiling, Thomas takes it all in, but he never joins in.
This may actually be the only topic that I agree with Thomas about. As near as I can tell, oral arguments before the Supreme Court are treated primarily as blood sport, sort of like frat hazing but for grown men and women. The putative point of the proceedings — i.e., presentation of a legal argument — is never allowed to take unfold in anything like a judicious manner, and the lawyers’ arguments are entirely contained in their briefs anyway. The questioning rarely seems to add anything to them.
Frankly, I’d be surprised if any justice ever has changed his or her mind about a case based on the questions they ask during oral arguments. My guess is that Thomas has figured this out and sees no point in joining in the charade. I can’t say that I blame him.
UPDATE: Commenter Kevin provides some further insight:
I attended a speech by someone from the Office of the Solicitor General last year, and he spoke about this exact topic. He has argued many, many cases before the Supreme Court. He said that for most cases that get receive media attention (i.e. those that deal with politically sensitive issues), there is little, if any, possibility that oral arguments will make any difference. However, in some of the more technical types of cases, such as cases that deal with obscure procedural nuances, oral arguments can help to flesh out a party’s case. On occasion, orals can change the opinion of a justice, but probably not in the cases that laypeople care about.