Down the Toob

The New Yorker’s Jeffrey Toobin indicts Justice Clarence Thomas for his infrequent participation in oral argument in hearings before the Supreme Court. At oral argument attorneys elaborate on arguments they have made in extensive briefs and a written record they have filed with the Court.

By the time of oral argument in a given case, the justices will have read the briefs and formed views of the case. If you’ve ever seen or heard one of these arguments, you know that the justices frequently use the oral arguments for purposes other than obtaining information.

Some appellate judges and justices find oral argument useful for its intended purpose; some don’t. I think Justice Thomas is probably in the latter camp, although Ann Althouse quotes him to the effect that he prefers not to interrupt the attorneys making their argument as a matter of courtesy. (Funny that Toobin left that out of his post.)

I would like to add a note based on my personal experience. Before we had our first daughter, my wife worked in the Hennepin County Attorney’s office as a prosecutor. She worked with Rob Lynn — later a Hennepin County District Court judge — in getting the Supreme Court to hear, and then in writing the briefs, in Minnesota v. Murphy in 1983 and 1984. Rob argued the case before the Court. The Solicitor General of the United States weighed in on behalf of the state’s case by filing an amicus brief and by assigning an assistant to appear at oral argument.

As I recall, when we met with the attorney from the Solicitor General’s office, we were told not to expect any questions from Justice Blackmun. He rarely if ever asked a question, we were told. That proved true in the oral argument in the case. Blackmun didn’t ask a single question. (Blackmun also trashed his conservative colleagues in public comments on the Court at the Eighth Circuit Conference that I attended in Colorado Springs around that time, conduct that I believe was unprecedented.)

Looking around to see if the information we had been given regarding Blackmun’s conduct at oral argument was accurate, I find this tactful account in Tinsely Yarbrough’s Harry A. Blackmun: The Outsider Justice (page link here):

Throughout his career, Blackmun was not among the Court’s more prolific questioners. In fact, late in life, he noted with some disapproval the number of questions asked by Ruth Bader Ginsburg and Antonin Scalia, among others, during oral argument. “One time in a couple of related cases that were argued in tandem during a morning for two hours,” he said, “I just out of mischief, kept track of the number of questions asked, and between Justice Ginsburg and Justice Scalia there were over a hundred questions asked of counsel…the result was often that counsel never could get his case argued…it was a little disturbing at time.” When Blackmun did ask questions, moreover, they tended to be relatively random in content.

I think readers of Toobin’s post on Justice Thomas — linked yesterday by RealClearPolitics — might find this to provide some useful context for Toobin’s comments.

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