On the Silence of Justice Thomas

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This article discusses the fact that Justice Thomas has not asked a question during oral argument for about four years, and has been mostly quiet his entire time on the SCOTUS bench. It notes that a recent graduate of the University of Florida School of Law, David Karp “argues in the Florida Law Review that, by keeping mum, Thomas in essence hides the ball and shields his often provocative legal positions from being tested before they make their way into Court opinions.”

I have always thought oral argument was an inefficient way to approach justice. It gives judges an excuse not to closely read the pleadings; it advantages people who are smooth and quick on their feet over people who are smart and thoughtful who like to listen to questions thoroughly and frame their answers carefully; and it privileges the element of surprise over foundational deliberation. It can also benefit white male lawyers over women lawyers and lawyers of color, and especially women lawyers of color if judges hold biases. Eliminating oral argument in favor of judges issuing a series of questions in writing that lawyers must answer succinctly strikes me as worthy of serious consideration.

The other thing this article brought to mind was that one of the many harsh criticisms of Justice Sotomayor after she was nominated to the Court was that she “talk[ed] too much too much and too often dominat[ed] an oral argument.

–Ann Bartow

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