Thanks to Law.com today, we know that today marks the four year anniversary of the last time the Justice Clarence Thomas spoke during oral argument. This is not the first time there has been speculation about his silence (this two year old article, for example), but how much does it actually affect the legal process? The reasons that he gives for his silence are many, but one of the most compelling is simply that he wants the advocates to have a chance to speak. A relatively recent note by David A. Karp in the Florida Law Review ($) explores the possible results of his silence. Karp argues that Justice Thomas does more harm than good with his silence. For one thing, lawyers do not have a chance to address arguments that he raises only in the decision. After all, the brief has already given the lawyer a chance to present her best arguments, and the oral argument offers a chance to get new and different perspectives on the issue. Karp says that Justice Thomas’ opinions are beautifully written and argued—but that not allowing his ideas to be vetted in oral argument makes him more of a constitutional commentator than an active part of the judicial process.
What do you think is the effect of Justice Thomas’ silence? Does it make him look respectful, or disinterested? Is it more important to give the lawyers a chance to present their case in their own words, or is give and take an essential part of the process? At the very least, it means that Justice Thomas does not score very well in D.C. Dicta’s Funniest Justice tally. Let us know what you think.