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Did you just completely ignore the post about how the strip searching case reveals a potentially troubling side effect of his refusal to engage during oral arguments?
Thomas has said why he doesn't ask questions - he feels he already has everything he needs from the record and briefs of the parties (and maybe the amici briefs). Additionally, I know of no other judge in any district or circuit court that has come anywhere close to not asking a single question during oral arguments for anywhere near as long. I'm willing to be proven wrong though.
However, this utter inflexibility has lead in many cases to Thomas writing concurrences or dissents that no other justice would join in. The strip searching case is one example. Another was his sole dissent in an 8-1 decision saying he would hold part of the Voting Rights Act unconstitutional.
On more than one occasion he has written that he wishes the parties would have addressed some issue or another; but of course, if Thomas himself doesn't raise the issue during oral arguments, it's slightly disingenuous for him to whine about it when writing by himself.
I don't think he's incompetent or negligent, but so completely inflexible and doctrinaire that he makes no effort to draft opinions that anybody else could join on with. This has a harmful effect on our jurisprudence and helps contribute to our increasingly fractured Supreme Court.
He has given more reason than that for silence, but the fact remains that he doesn't have to justify his silence at all.
You imply that you don't agree with his opinions, or at least some of them. Nothing wrong with that.
You also imply that you are annoyed by the fact that he has a mind of his own and is not a sheeple.
Then you conclude that, in your opinion, he is neither incompetent nor negligent.
You can't logically reach your conclusion without supporting factual evidence, either.
I gave factual evidence. He has asked questions before...this is factual evidence.
So it follows logically that he can and would engage if needed...because he has. This is consistent.
To assume some nefarious reason for not engaging is inconsistent with the fact that he has engaged before, and requires supporting evidence.
You can flip that and say...but, but wait...since he engaged before but hasn't lately, something must be wrong. This is fine as long as you can show factual evidence to support your charges.
You say you are "discussing" but many folks are making assertions with no support or attempt to support.
He is innocent until they prove his silence makes him guilty of the charges they make against him.
He has given more reason than that for silence, but the fact remains that he doesn't have to justify his silence at all.
You imply that you don't agree with his opinions, or at least some of them. Nothing wrong with that.
You also imply that you are annoyed by the fact that he has a mind of his own and is not a sheeple.
Then you conclude that, in your opinion, he is neither incompetent nor negligent.
You're right, he doesn't have to justify his silence at all. He has lifetime tenure, barring impeachment (which is frankly not going to happen). It is, however, extremely unusual to stay silent during oral arguments and not not complimentary towards his approach to cases.
I'm annoyed by the fact that all the Justices to some extent have been writing fractured opinions more and more often in recent years. It leads to further confusion in lower courts, and stymies efforts for clear rules and standards.
As an example (pre-Thomas) see Asahi, the most important recent case on personal jurisdiction. There are several opinions in that case, but no opinion has a majority, so lower courts are left unclear of when a foreign company may be subject to personal jurisdiction in the US, to the point where different circuits have different rules.
This trend has been happening more often in recent years, and Thomas' habit of writing opinions to which nobody else joins contributes to preventing judicial consistency. I do agree that Thomas is neither incompetent nor negligent, but he is probably the most extremist and doctrinaire member of the Court, at least on the basis of his opinions. It shows complete inflexibility, and I think that partially manifests itself in his refusal to speak during oral arguments. He reads a brief and decides the case on the spot. There's nothing that he would want to hear that would change anything about the outcome or the reasoning. Further, he seems almost totally uninterested in trying to get other justices to join his opinions. To an extent all justices have been doing that in recent years, but Thomas is more pronounced. And as I said, it leads to more cases decided with plurality decisions of limited precedential value and increased confusion in lower federal courts.
Quote:
since he engaged before but hasn't lately, something must be wrong.
Hasn't lately? In the past five years the Supreme Court has decided several landmark cases. He's made a conscious decision that he will not ask questions at oral argument. He's said in interviews he sees no purpose behind it. It's a change in his judicial temperament which strongly suggests that he might never actually ask a question during oral arguments again.
Theoretically, a good advocate could change someone's opinion, and has --- but this is not dependent solely upon questions asked, or who is, or is not, engaged in the conversation.
One of the ways Justices use oral argument is to lobby for or against, to support their own positions.
Any lawyer who has read Thomas' opinions is under no illusion about his philosophy.
I gave factual evidence. He has asked questions before...this is factual evidence.
So it follows logically that he can and would engage if needed...because he has. This is consistent.
To assume some nefarious reason for not engaging is inconsistent with the fact that he has engaged before, and requires supporting evidence.
You can flip that and say...but, but wait...since he engaged before but hasn't lately, something must be wrong. This is fine as long as you can show factual evidence to support your charges.
You say you are "discussing" but many folks are making assertions with no support or attempt to support.
He is innocent until they prove his silence makes him guilty of the charges they make against him.
I actually haven't put forth any conclusions about why he hasn't participated. Because no one, including YOU, can actually conclude anything based on the facts that we have. I've related a variety of possible reasons, because that's what this discussion is about. But the only conclusion I've asserted is perfectly logical. That conclusion was that his choice not to participate in oral arguments is odd. I can logically conclude that because:
A: Thomas has ALWAYS been notably reticent during oral arguments, even during the early years of his term as a Supreme Court Justice, and has not asked any questions during oral arguments for FIVE YEARS.
That's a factual claim.
B: Supreme Court Justices regularly ask questions during oral arguments. All Supreme Court Justices have asked questions. Some Supreme Court Justices ask a great many questions, not just to the lawyers presenting the case, but of one another. Some Supreme Court Justices are more reticent. But in the history of the Supreme Court, no justices have been as reticent as Justice Thomas.
That's a factual claim that then supports my conclusion.
C: Given that there are ample reasons for justices to participate in oral arguments, as is made clear by the history of participation, as well as the historical record that shows judges' opinions being altered by the discussions in oral arguments (for instance, the school strip-search case I cited earlier in this thread where the male justices didn't think the strip-search was a big deal, but were persuaded by Ginsberg's remarks), and given that Justice Thomas's choice not to participate in oral arguments as is made clear by his complete silence during the past five years, Justice Thomas's behavior is odd.
That's a logical argument supported by facts.
Your conclusion is not a logical argument. It's conjecture.
Theoretically, a good advocate could change someone's opinion, and has --- but this is not dependent solely upon questions asked, or who is, or is not, engaged in the conversation.
One of the ways Justices use oral argument is to lobby for or against, to support their own positions.
Any lawyer who has read Thomas' opinions is under no illusion about his philosophy.
Be careful what you ask for.
They are NOT ceremonial. They are the substance of the process. The briefs establish the lawyers positions. But the oral arguments are where the lawyers persuade nine learned justices that their position is the correct position. Oral Arguments in front of those members of the Supreme Court are the aspiration of the vast majority of practicing lawyers. Anyone can write a brief. Law students can write briefs. Paralegals write briefs. Even interested non-lawyers can write a brief. Our legal system is designed to be adversarial, though. And briefs aren't adversaries. The people who stand up and defend their positions, who can connect the words with the reality of the situation, who can persuade nine people of the rightness of their position, of the rightness of their clients, sparring with the opposing counsel, sparring with the justices. Oral arguments are integral to our system of justice.
They are NOT ceremonial. They are the substance of the process. The briefs establish the lawyers positions. But the oral arguments are where the lawyers persuade nine learned justices that their position is the correct position. Oral Arguments in front of those members of the Supreme Court are the aspiration of the vast majority of practicing lawyers. Anyone can write a brief. Law students can write briefs. Paralegals write briefs. Even interested non-lawyers can write a brief. Our legal system is designed to be adversarial, though. And briefs aren't adversaries. The people who stand up and defend their positions, who can connect the words with the reality of the situation, who can persuade nine people of the rightness of their position, of the rightness of their clients, sparring with the opposing counsel, sparring with the justices. Oral arguments are integral to our system of justice.
something maybe a psychologist or some other non-attorney professional might not "get" if they have a predisposition to believe that our justice system doesn't work.
They are NOT ceremonial. They are the substance of the process. The briefs establish the lawyers positions. But the oral arguments are where the lawyers persuade nine learned justices that their position is the correct position. Oral Arguments in front of those members of the Supreme Court are the aspiration of the vast majority of practicing lawyers. Anyone can write a brief. Law students can write briefs. Paralegals write briefs. Even interested non-lawyers can write a brief. Our legal system is designed to be adversarial, though. And briefs aren't adversaries. The people who stand up and defend their positions, who can connect the words with the reality of the situation, who can persuade nine people of the rightness of their position, of the rightness of their clients, sparring with the opposing counsel, sparring with the justices. Oral arguments are integral to our system of justice.
Supreme Court justices can ask questions, but jurors cannot?
How does your argument rationally fill that gap?
An anonymous German company moved for oral arguments.
I was supposed to pay my London barrister $7000 to fly to Cologne Germany to spend half a day giving oral arguments against a German patent lawyer to overcome an invalidity challenge by a German corporation. I asked the barrister how an oral argument can possibly overcome or persuade away from the facts and law already presented in briefs. He said that you never know what the opposition will pull out of its hat at oral, and if you are not represented there, you could lose.
I told my barrister that I wished to stand pat on the briefs and not show at oral. When the EPO and the opposition lawyers were informed, the German lawyers also didn't show at oral. The case was decided on the written submissions, and I won.
Not only couldn't I afford the luxury of oral arguments, but I thought that a shouting German would have language bully power over a shouting Brit.
You ever watch a Hitler rant?
Oral can only offer emotion.
Courts are supposed to be dispassionate.
Just the facts, just the law, thank you!
There needs to be more effort in keeping politics out of law, especially at the Supreme Court level.
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something maybe a psychologist or some other non-attorney professional might not "get" if they have a predisposition to believe that our justice system doesn't work.
