Eh. It's culturally (among appellate judges, that is) weird not to ask questions, but it's just true that the vast bulk of what a case gets decided on is in the briefs, not oral argument. He's wrong about pretty much everything, but the no questions thing is a quirk, not something that in itself makes him a bad justice.
Shorter, curlier Clarence Thomas?
LB, stop interrupting our pubic hair jokes.
Actually, Becks, I think that's a longer versions of what Thomas said.
My thought was that maybe he couldn't get a word in edgewise.
I'm going to take Thomas's side on this but I won't tell you why.
it's just true that the vast bulk of what a case gets decided on is in the briefs, not oral argument.
Is it significant that you said "vast bulk" instead of "everything"? Of course Thomas benefits from listening to the QandA going on beside him. IANASupremeCourtJustice, but no clarifying questions of his own, at all? It implies that all the written work submitted to him is always 100% to his satisfaction or that his fellow justices always get to his questions first.
Here's a list of the patron saints of bodily ills, in case you want to keep Thomas, Scalia, Alito and Roberts in your prayers. They're not contractually obligated to intervene in favor of health, as far as I know.
He would "prefer to be called the 'Listening Justice'"? Okay, Mr. Pompous-head.
IANASupremeCourtJustice
Then get off this thread already.
It's culturally (among appellate judges, that is) weird not to ask questions.
Even this isn't universally so. I have argued in front of one particular appellate court where it's not at all uncommon for the judges to ask no questions at all. The judges will make eye contact, nod, smile politely, but ask nothing. It's a bit disconcerting as you get absolutely no feel for what the court is thinking. But I've come to realize that what they are thinking is, "Yes, we've read the briefs, they were clear, all my concerns have already been addressed."
And I should add that, while it's often easier to argue to a panel that is asking a lot of good questions, the quiet court I'm thinking of is actually one of my favorites.
don't know nothing about him, but seems a cool judge
I'm going to take Thomas's side because Geechee is phonetically 'female wolf' in my language
sorry of course to violate the fumblerule
The two semi-legit reasons to criticize a Judge for not asking questions are:
1. They're not trying to persuade their fellow justices;
2. They might be making things harder on the lawyers arguing before them, but see Di above for a different view on this, and she apparently goes to court sometimes so knows more than I do.
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I got an e-mail from Families against Mandatory Minimum Sentences urging me to call my representatives today between 9 and 4 EST to support legislation to eliminate the disparity between crack and powder cocaine. If this is an issue you care about, please call.
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They're not trying to persuade their fellow justices
But we can't really judge this based on their conduct at oral argument. My experience with appellate judges is that they discuss the case some before argument, they discuss the case some more right after argument, and they discuss the case still more once a draft decision has been circulated. Asking good questions can make life easier for the attorney arguing. On the other hand, asking a bunch of questions that aren't really questions for the attorney but instead are indirect arguments to the other judges can be annoying.
And asking no questions at all may be less disconcerting than opening with a hypothetical to the lawyer that begins, "Say you are being sued for malpractice..."
What Di Kotimy and LB said. Whether a judge asks questions at oral argument is not a reliable indicator of whether or not he has pre-decided the case, and the culture of questioning varies immensely from circuit to circuit.
Pre-drafting opinions before oral argument: that's right out.
19 happily granted. I should have said "They're not using this forum to try to persuade their fellow justices."
Whether or not Justice Thomas should be impeached, he certainly should be banned:
Suppose surgeons started discussing the merits of removing a gallbladder while in the operating room, Thomas said, as quoted by U.S. News & World Report. "You really didn't go in there to have a debate about gallbladder surgery," he said. Similarly, "we are there to decide cases, not to engage in seminar discussions."
I keep thinking of this as analogy to a philosophy seminar, where Scalia is that charming but annoying kid who dominates the discussion and is almost smart enough to get away with it, except that would cast Thomas as the bright-but-quiet kid who blows away everyone on the midterm paper because even though he was just hanging out there being quiet, he was thinking.
24: Thomas isn't stupid. He's crazy, but he's not stupid. The idea of him blowing away Scalia in intellectual combat isn't completely far-fetched, especially when Scalia's been phoning it in for years.
First time I wrote an amicus brief, Thomas asked a question from it at oral argument. Of course I had to watch helplessly as the lawyer stumbled through a weak answer.
The big difference between the SC and most (but obviously not all) appellate courts is that the SC picks its cases. Because it wants to advance the law, not because it wants to do justice in some particular matter. In my view, this makes questioning all the more relevant.
The Maryland Court of Special Appeals -- this is where you can appeal as of right, while the Court of Appeals is basically a cert court -- assigns a judge to write the opinion weeks before the argument. Naturally, that person takes the lead in questioning, and asks the better questions. (They don't tell you who it is, but you can tell in about 90 seconds).
"Justice Thomas, your philosophy on this question is different than that of the vast majority of other Supreme Court justices in history, including all of your present colleagues. Your surgical comparison makes it seem that you think that most other justices have been very wrong indeed on this question. Have you ever tried to explain to the lame motherfuckers you're on the Court with how very, very wrong they are?"