Monday, February 24, 2014

Law By L'Esprit D'Escalier

People are talking about Jeffrey Toobin's piece at The New Yorker website, "Clarence Thomas's Disgraceful Silence." While the other Justices are questioning attorneys, Thomas sits back and stares at the ceiling:

[...] there is more to the job of Supreme Court Justice than writing opinions. The Court’s arguments are not televised (though they should be), but they are public. They are, in fact, the public’s only windows onto the Justices’ thought processes, and they offer the litigants and their lawyers their only chance to look these arbiters in the eye and make their case*. [....]

But the process works only if the Justices engage. [....] Thomas is simply not doing his job.

Is Toobin kidding?  The job of a Supreme Court Justice is to hear cases and make rulings.  That's it.  Toobin believes it's the Justices' job to show their "thought processes"?  I suggest he read their opinions, then, or is it their job to tweet each day so we know what they're thinking as they go along?

Oral arguments are fun, but they're a showcase.  They rarely--maybe never--decide a case.  The Justices receive numerous briefs, do their own research and argue amongst (and within) themselves for months before their opinion is issued.  I think Thomas's silence sets an excellent example.  These days the attorneys barely open their mouths before they're interrupted.  What follows is the Justices toying with them, often showboating, but barely breaking new ground in the legal argument.

And imagine if the answers to these questions were significant.  That would be horrible.  Rulings would be based on which attorney was fastest on his feet.  Imagine the weaker attorney driving home that night and thinking "if only I'd made this argument instead of that one, the course of American jurisprudence would have been changed."

*Note the slippery wording here: "they offer the litigants and their lawyers their only chance to look these arbiters in the eye and make their case." They've actually got months or even years to "make their case," including their work in the lower courts and their briefs, but it's true, the short and relatively unimportant--if exciting--oral argument is their one chase to look the Justices in the eye while doing so.

4 Comments:

Anonymous Anonymous said...

I think you mean "rarely," not "barely."

If it were barely, we could be delighted with it.

4:14 AM, February 24, 2014  
Anonymous Denver Guy said...

I thought Toobin's piece was a disgrace. After decades of the liberal argument holding sway in the S.Ct., liberal legal minds are just beside themselves that the roughly split Court holds on and on (a whole 23 years since the appointment of Thomas to replace Marshall, after roughly a 50 year run for the more liberal justices' msjority influence).

The fact is, I don't think the S.Ct Justices are overtly political - they simply have their own legal philosophies. They can't be threatened into changing their legal predispositions. The problem for Republicans for a while was not concentrating on the true legal fundamentals of their candidates before nominating them, giving us Justices like Souter and Stevens. Otherwise the Court would have represented more conservative legal theory much sooner.

The blatant reverse racism of attacks on Thomas is deplorable. They used to accuse him of not having the mental rigor of other Justices, until he wrote some of the most cogent and intellectually consistent opinions the Court has produced in decades. Now they try to pick at any nit they can find.

10:22 AM, February 24, 2014  
Anonymous Anonymous said...

He's afraid he'll mention pubic hair again

11:15 AM, February 24, 2014  
Anonymous Anonymous said...

Just another white man telling a black man to perform for him. Hey you, pay attention to your superiors, and sit up straight, boy.

11:30 AM, February 24, 2014  

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