Thursday, March 22, 2012

Silence is...?

Last month, the New York Times ran an article about the fact that Justice Thomas has not asked a lawyer a question during oral argument since 2006. The gist of the article is that Justice Thomas's refusal to ask questions is bad. It also seems to suggest that Justice Thomas has not been entirely forthcoming about why he doesn't ask questions because his reasons as to why he doesn't speak at oral argument are "various and shifting." The premise of the article is the proverbial dog that won't hunt. Justice Thomas's silence isn't bad and the reasons he offers for his silence are not "various and shifting." They aren't even bad reasons.

As to the "various and shifting" explanations, the article cites to three different explanations: (1) Justice Thomas is self-conscious about the way he speaks; (2) he thinks the courteous thing to do is let the lawyers actually argue their case; and (3) he finds it difficult to get a word in edgewise. None of these are bad reasons for not asking a question. Moreover, I note that none of these reasons contradicts any of the other reasons and aren't really "shifting" as most people would understand the term. Items 2 and 3 seem to compliment each other in that some of the other justices ask a lot of questions and Justice Thomas may feel that some amount of time ought to be given to the arguments that the lawyers intended to make rather than just making them answer questions.

Sometimes these questions are not particularly useful. For example, some of the Supreme Court justices use oral argument to tell jokes. Justice Scalia, for example, gets a little over one laugh per argument. It would not hurt anything if there were a few less jokes at oral argument and a few more minutes of lawyers making the argument they intended to make.

In any event, Justice Thomas is certainly correct that his colleagues ask a lot of questions. Mr. Torvik recently posted about the case of Pacific v. Valladollid. The case was a 9-0 decision. This indicates the case was not very difficult or contentious. The transcript of the oral argument is here. The argument portion of the transcript is 59 pages long and three lawyers appeared to argue on behalf of the petitioners and respondents. Out of 59 pages, there are 4 pages where a lawyer isn't asked a question (pages 12, 27, 57, and 60). Some of the pages, for example 8, 14, 18, 24, and 36, are mostly questions. Justice Scalia's one laugh is on page 32. If there are only 4 pages where a lawyer is not being asked questions in a unanimous case, I suspect that there are more questions in cases that aren't unanimous.

Justice Thomas is not alone in thinking that too many questions actually derails an argument. When Eighth Circuit Court of Appeals Judge Donald P. Lay died, the folks at the Powerline blog memorialized him. One of the things the post noted, was an occasion when Judge Lay asked a judge to stop asking so many questions so that Judge Lay could hear the argument that the lawyers wanted to make.

I think that Judge Lay was trying to make the point that while one purpose for oral argument is to get answers that a question the judge may have, another point to oral argument is to give the parties an opportunity to feel like they had their day in court. That is, an opportunity to advance the facts and/or legal points that are important to their client. Justice Thomas's second explanation seems to agree with this.

I have not argued in front of the Supreme Court. However, I have argued in front of the appellate courts, which have 3 judges asking questions. I have had the experience of realizing that the questions I am getting aren't designed to test the strength of my argument. Instead the questions are designed to show me that a particular judge isn't going to accept my argument. That type of questioning doesn't have much, if any, utility. If the main point of a question is just to show me that my client is going to lose, I would just as soon wait until the court issues an opinion on that topic. In that regard, Justice Thomas's decision not to ask questions is correct.

1 comment:

  1. I don't recall the speaker's name off-hand, but he was a biographer of J. Thomas. His view was similar to yours, and he noted that prior justices on the court rarely asked questions. In the legal profession, silence is often interpreted as a sign of incompetence, as is the admission "I don't know." Both interpretations are wrong.


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