When Keeping Your Mouth Shut Doesn’t Make Sense: Ann Woolner

Clarence Thomas comes from my part of the country, the American South, where it’s just plain rude to interrupt someone who’s speaking.

But ever since he (narrowly) won confirmation to the U.S. Supreme Court in 1991, Thomas has held a job where he’s expected to interrupt. He doesn’t.

Lawyers arguing their cases before the Supreme Court want to know what issues are bugging the justices and which way they’re leaning. That makes it easier to try to sway them on what could be a critical point for a justice. So it’s kind of rude not to interrupt.

And yet, day after day, hour after hour, argument after argument, Thomas is the one justice, the only justice, who never opens his mouth.

OK, almost never. The last time Thomas spoke during argument was five years ago this week, according to the New York Times.

The most talkative justice, Antonin Scalia, engages lawyers in lively exchanges. Stephen Breyer spins elaborate hypotheticals. Sonia Sotomayor tells lawyers where their arguments are flawed, or may chastise them for their client’s bad conduct.

Even Samuel Alito, the second quietest justice on the bench, asks something every now and then. Not Thomas.

“If we invite a person in, we should at least listen to what they have to say,” he said in 2009 to a bar group in Virginia, sounding very much like a Southerner. But this is only one of many explanations he has given through the years.

Polite or not, by sitting mute he literally puts himself outside the conversation.

Sending Signals

Often the justices speak to signal each other where they stand. They use oral argument to win votes and build coalitions for their viewpoint, says Timothy R. Johnson, a University of Minnesota political science professor who researches and writes about Supreme Court argument and decision-making.

Read the transcript of any Supreme Court argument and you’ll see that lawyers spend the bulk of their time answering justices’ questions and very little time reciting the speech they’d prepared. Some on the bench seem to be enthralled by the sound of their own voices.

But by staying silent, Thomas is surely giving up potential influence. (This is fine by me because the less sway he has, the freer the rest of us are from his cramped view of the law).

It also makes him look weird.

His Explanations

“What’s wrong with him,” a high school teacher asked one of her co-workers, a woman who had known Thomas in childhood, during a school trip to the high court, according to the 2007 book, “Supreme Discomfort: The Divided Soul of Clarence Thomas.”

Why Thomas so easily cedes some of the power that comes with his position remains something of a mystery. His explanations, offered up in public appearances, vary. They include:

-- His Geechee accent (also known as Gullah, rooted among some African-Americans from the southeastern U.S. coast) made him self-conscious as a poor child from Pin Point, Georgia. And as a high schooler at a virtually all-white seminary outside the city, he got into the habit of not speaking.

-- He thinks it’s counterproductive to interrupt lawyers as they’re making their points.

-- He learns more by listening than talking.

-- Other justices usually ask the questions he wants answered, anyway.

-- He thinks there’s too much chatter from the bench already.

He’s got something there on that last point. During the past 13 years of arguments that Johnson has studied, justices spoke an average of 127 times per hour-long argument. That’s twice a minute, Johnson pointed out yesterday in a telephone interview from his office in Minneapolis.

Much of that may be unnecessary, but Thomas’ colleagues often speak out for a reason.

They don’t delve into the issues with each other where you’d expect them to, which is during their closed door conferences on the cases, according to available evidence, Johnson says.

Others have said that live, oral arguments aren’t important because the lawyers have already laid out their positions on paper. But that’s not why Thomas appears disengaged.

“You can win or lose your case at an argument,” Thomas told the Arkansas Bar Association in 1998, according to “Supreme Discomfort,” by Kevin Merida and Michael A. Fletcher.

Different Man

Observers have suggested that his humiliating confirmation hearing embittered him against public participation in the court. Friends speculate that he stays mum because he dislikes engaging in open conflict.

What makes Thomas’s silence more peculiar is that off the bench he is often amiable and gregarious, not to mention articulate and sometimes self-revealing. I’ve seen him in and outside the court, and he is a different person when he is giving speeches or promoting his autobiography than the man who stares at the ceiling during oral argument.

Thomas’s silence helps feed the view that he is an outsider. After overcoming the barriers of poverty and race to attain lifetime appointment to one of the most powerful positions in the country, he seems intent on marginalizing himself.

However deep his voice and distinctive his views, Thomas’s inability to let them out into the great hall of the court diminishes them. And to some degree, it also shrinks the justice from Pin Point.

Ann Woolner is a Bloomberg News columnist. The opinions expressed are her own.)

To contact the writer of this column: Ann Woolner in Atlanta at awoolner@bloomberg.net

To contact the editor responsible for this column: James Greiff at jgreiff@bloomberg.net

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