Clarence Thomas speaks in court! (Four words.)

The execrable conservative Supreme Court Justice Clarence Thomas finally said something in a U.S. Supreme Court hearing. He hasn’t spoken during oral arguments (which is how the hearings are conducted) since 2006, and

As the New York Times reports:

Justice Thomas leaned into his microphone, and in the midst of a great deal of cross talk among the justices, cracked a joke. Or so it seemed to people in the courtroom.

The official transcript confirms that Justice Thomas spoke, for the first time since Feb 22, 2006. It attributes these words to him, after a follow-up comment from Justice Scalia concerning a male graduate of Harvard Law School: “Well – he did not —.” That is all the transcript recites.

Thomas’s four words of wisdom followed this exchange, reported by the Los Angeles Times:

Justice Antonin Scalia, taking the state’s side, said Boyer’s lawyers certainly appeared qualified. [The issue is whether a Louisiana inmate had comptent lawyers.]

“She was a graduate of Yale Law School, wasn’t she?” asked Scalia.

Yes, she is a “very impressive attorney,” replied Carla Sigler, an assistant district attorney from Lake Charles, La.

“And another of his counsel, he was a graduate of Harvard Law School,” Scalia continued. “Son of a gun,” he added.

“Well, he did not…” Thomas said, his words mostly drowned out by cross talk.

“I would refute that, Justice Thomas,” Sigler replied, apparently defending the view that a Yale or Harvard law degree is solid proof the attorney is minimally competent.

Thomas is a godawful justice, who simply follows Scalia’s lead, breaks no legal ground, and always takes the part of the wealthy and the Republican. He exemplifies the politicization of the Court, and I fervently wish he would go. No chance of that.


  1. Ed
    Posted January 14, 2013 at 5:40 pm | Permalink

    I am an experienced Supreme Court litigator (I’ve argued 3 cases there), an atheist, a political liberal, and a fan of your book and website. I have to take exception with your post. I rarely agree with Justice Thomas, but he is a fine Supreme Court justice. Appellate litigators like myself value tightly reasoned and narrowly written opinions above all else. Sloppy opinions result in vast collateral damage to the law. Justice Thomas along with Justice Ginsburg are known for their extremely well written opinions. Justice Thomas’s reticence is famous, but should not be held against him. Too many questions and comments during argument are needless showboating. And finally, Justice Thomas does not mindelessly follow Justice Scalia. They disagree on many issues (civil libertarianism is a good example) and, often, it is Justice Scalia who follows Justice Thomas.

    • Scott near Berkeley
      Posted January 14, 2013 at 5:53 pm | Permalink

      Nice insight!
      I have shared Jerry’s sentiments up to the moment where I read your comments. So I will have to modify them in light of reading your opinion.
      Thanks, Ed.

      …still believe Anita Hill spoke the truth, though…

    • Posted January 14, 2013 at 6:18 pm | Permalink

      This is a very interesting comment. But you say “Too many questions and comments during arguments are needless showboating…” Define too many. Surely two or even three comments or questions by him in the last six years would not approach “showboating”.

      • Christopher
        Posted January 14, 2013 at 7:27 pm | Permalink

        I think the issue at hand was the claim that you could evaluate competency based on a paucity of questioning. Clearly that is flawed.

        • Posted January 14, 2013 at 8:16 pm | Permalink

          Ed says Thomas’ opinions are well written and argued, but that he rarely agrees with them. How can Ed say they are well-argued and simultaneously say that he rarely agrees with the arguments?

          How can a Supreme Court justice who virtually never asks questions be competent? Does he think he knows all the answers already? If so, his self-delusion would make him incompetent. If not, then he is incompetent for not asking.

          • gbjames
            Posted January 14, 2013 at 8:33 pm | Permalink

            I’m with you, Lou. I don’t have muck confidence in people who don’t ask questions. That goes beyond “reticence”.

          • Josh
            Posted January 15, 2013 at 7:17 am | Permalink

            What Ed was alluding to is that most people knowledgeable about the law and SCOTUS think that oral arguments at the Supreme Court are just opportunities for “pointless grandstanding,” as Scott Lemieux put it. Justices should be esteemed based on their written opinions, not on a ridiculous public spectacle that mostly offers Scalia an opportunity to rail against the Obama administration.

          • Christopher
            Posted January 15, 2013 at 9:55 pm | Permalink

            You may disagree with an opponent’s (ideological or otherwise) position, but that does not preclude your opponent from being able to pen well written and well argued positions. Just because I disagree doesn’t magically change a well educated and trained opponent’s writing style nor reduce his arguments to mush. Your opponent’s arguments may be cogent and heaven forbid, you may be wrong. Remember what Feynman said, You yourself are the easiest person to fool. And when one is dismissive of an opponent out of hand, you fall victim to Hitchens’ criticism of sounding like someone who hasn’t read any of the arguments against your position.

            • Posted January 17, 2013 at 5:44 pm | Permalink

              But Ed says he nearly always disagreed with Thomas’s opinions AFTER HE READ THEM. This means Ed was not convinced by the arguments, so how could they have been good arguments? (I am assuming, of course, that Ed is a rational person. )

    • threecheersforreason
      Posted January 14, 2013 at 8:55 pm | Permalink

      does clarence thomas write his own opinions, or, as i have seen alleged, is the work done mostly by his clerks? i hold the man in utter contempt for many reasons, but his legal competence has been vouched for enough times by people who know better than i for me to hesitate to indulge myself in scorn for his abilities.

    • David M
      Posted January 14, 2013 at 11:33 pm | Permalink

      What was David Souter like?

    • James
      Posted January 15, 2013 at 10:11 am | Permalink

      Lawyer (though not SCOTUS litigator) and aspiring constitutional law prof here, and I agree completely. Jerry and other science bloggers get understandably upset when non-scientists make uninformed statements about science, yet the comments about Thomas at the end display the same kind of reflexive ignorance. As those of us familiar with judicial procedures would understand, Supreme Court oral arguments are almost always more show than substance because the real meat of the legal disputes play out behind the scenes in the voluminous legal briefs that the parties (and, frequently, any number of non-party friends of the Court) submit to the Justices. Thomas’s reticence in oral argument is a matter of personal style, and nothing more; he’s also entirely correct that many of the “questions” posed to the lawyers are more opportunities for the Justices to argue amongst themselves than an attempt to elicit clarification from the attorney. The myth that Thomas “follows Scalia’s lead” is merely that; while both are of course on the conservative end of the spectrum, Thomas’s opinions quite often depart from Scalia’s views and the perpetuation of this myth on the part of the left is frankly more than a bit condescending in ways that I’m sure I needn’t explicate. Finally it is entirely possible to find an opinion well-argued while ultimately disagreeing with it, as anyone familiar not only with legal reasoning but any sort of academic discourse should readily understand.

  2. ThyroidPlanet
    Posted January 14, 2013 at 6:34 pm | Permalink

    I dont get it – the background is enough to follow but could someone explain what is inferred from the four words?

  3. Tumara Baap
    Posted January 14, 2013 at 11:10 pm | Permalink

    I thought the same that Thomas was simply not bright and simply followed Scalia. Conservatives will shoehorn whatever argument they can come up with in the service of backwardness and Thomas epitomizes this. He doesn’t give two shits about legal precedent. Much of this I think is true. However a Toobin piece about the justice and his nutter tea party wife Viginia and their bearing on Obamacare made a persuasive case that the Justice is quite skilled at his odious work. Over time the court has increasingly moved in his direction, increasingly entertaining his radical positions and conveniently trampling over stare decisis for the sake of foaming-at-the-mouth ideology. Maybe this is not necessarily because Thomas has a brilliant legal mind. But his retrogressive casuistry has nevertheless served as template for a court that has shifted disturbingly to the right. Either way he has had an impact, and a mere Scalia copy cat he isn’t.
    See Jeffrey Toobin’s New Yorker piece: Annals of law: Partners.

  4. mordacious1
    Posted January 15, 2013 at 12:44 am | Permalink

    Thomas is, in my view, one of the worst justices to sit on the Court in recent history. Maybe some lawyers respect his reticence and terse opinions (or lack of opinions), but terse does not always equal “well thought out”. The man is contemptible and the worst thing is he has the seat of someone I thoroughly respect, Justice Marshall. No matter what Ed’s opinion is of the man, his decisions have generally stunk up SCOTUS (although he doesn’t usually write the opinion, only concurs with others) and I for one am glad that he’s “reticent” because I don’t want to listen to him.

    Read this:

    to get a taste of Thomas’ thought processes. His wife is even more contemptible, although not as powerful. How anyone can respect either of them is beyond me.

  5. Ken Kukec
    Posted January 15, 2013 at 3:37 am | Permalink

    “Thomas is a godawful justice, who simply follows Scalia’s lead, breaks no legal ground, and always takes the part of the wealthy and the Republican.

    I am no fan of Justice Clarence Thomas. I am on the polar opposite side of the political spectrum.. I strongly disagree with almost all of his opinions, particularly in the most important cases. I abhor his judicial philosophy.

    At his Senate confirmation hearing, Anita Hill was, I believe, telling the truth, and Clarence Thomas was not.

    For quite a while, it was common knowledge — a “meme,” if you will — among those of us on the Left that Thomas was little more than Justice Antonin Scalia’s shadow, consistently casting votes on the same side in nearly every case, sedulously following Scalia’s lead.

    This view (which, I confess, I initially shared) was, by and large, based on three factors: First, Scalia preceded Thomas to the Supreme Court, and had staked out the most extreme conservative ground as his own well before Thomas’s arrival. Second, Scalia and Thomas tend to vote in tandem in nearly every case of consequence. Third, Scalia is the more colorful writer, and much more the showman, both on and off the bench (so much so that, in recent years, Scalia seems on the cusp of descending into a spiral of self-caricature). These factors combine to lend the impression that Scalia is the leader, Thomas the loyal minion.

    This view is not, however, borne out by the facts — especially as reported in Jan Crawford Greenburg’s thoroughly investigated 2007 book, Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court, which reveals that Thomas is frequently the intellectual leader on The Right and that, as between Thomas and Scalia, Thomas more often sways Scalia to his point-of-view, rather than the other way round. The factual accuracy of this reporting has not been seriously challenged, and Thomas’s influence on the Court has been corroborated by journalists including Jeffrey Toobin and Linda Greenhouse — neither of whom is anyone’s idea of a conservative, both having drawn the Right’s ire for its favorite canard, “liberal bias.”

    It is also not correct that Thomas’s jurisprudence “breaks no legal ground.” In various concurring and dissenting opinions, he has carved out a novel legal theories (ones that I sincerely hope never commands a majority of the Court) seeking, among other things, to roll back Congressional power under the Commerce Clause and to reinvigorate the “Privileges and Immunities” Clause, and has shown an unprecedented willingness to set aside precedent.

    It is unquestionably true that Justice Thomas’s voting pattern largely fits that of a doctrinaire conservative: Under his view, States prevail over the federal government; government prevails over individuals; corporations prevail over government; and management prevails over labor. But the same can be said about his three most-conservative colleagues (the four of whom constitute one of the most consistently conservative voting blocks in Supreme Court history).

    It is also true (as much as I generally dislike long-distance, armchair psychoanalysis) that Thomas appears to be suffering a deep-seated psychological anguish, symptoms of which include his strange silence on the bench (punctuated every few terms by outcries that are not so much questions as the howls of a wounded animal, as happened during oral argument in the Court’s cross-burning case) as well as the resentment-drenched remarks that pepper his outside speaking engagements and his autobiography. (On the other hand, it is reliably reported that, in private, Thomas is jovial, even gregarious, and popular among his colleagues and clerks. Go figure.)

    Thomas undoubtably had a difficult childhood. (His reticence on the bench has been attributed by some, including himself, to the self-consciousness he experienced upon first enrolling in school, after growing up speaking the Gullah dialect on the poverty-drenched coast of Georgia.) He also obviously bears a deep-seated grudge about being (correctly) labeled an affirmative-action student at Yale Law School, despite his acceptance at an elite law school having clearly paved the way for his later success — which renders even more ironic his obstinate refusal to afford similar opportunities to other minority students. Thomas even more obviously bears the scars of his contentious confirmation hearings.

    What I can say about Justice Thomas based on personal knowledge — indeed, the only thing I can say on that basis – concerns the quality of his written opinions: They demonstrate a high level of competence, consistently so. (It is something of a parlor game in some quarters of the legal community to speculate about how much opinion-drafting is done by the Justices themselves and how much by their law clerks, given that those clerks are drawn from among the top students at the elite law schools. Inasmuch as the quality of law clerks varies from term-to-term, consistency in draftsmanship is generally the hallmark of a Justice’s taking the lead in actively drafting his or her own opinions. By this mark, Thomas is clearly up to the job.)

    There are certainly valid grounds on which Clarence Thomas can be criticized. And history may well judge him harshly for the content of his radical right-wing judging. But he is certainly not Scalia’s stooge, and it does not comport with the available evidence to suggest he is incompetent. (When some on the Right cast similar aspersions on Thomas’s predecessor, civil-rights hero Thurgood Marshall, those of us on the Left justifiably took umbrage.).

    • SLC
      Posted January 15, 2013 at 7:50 am | Permalink

      I always get a laugh out of those who natter on and on about affirmative action. Oddly enough, one never hears them criticize the oldest form of affirmative action, namely legacy admissions. Sans legacy admissions, there is no way in hell that George W. Bush would have gotten into Yale as an undergraduate, based on his SAT scores.

      • mordacious1
        Posted January 15, 2013 at 10:40 am | Permalink

        In Mr. Bush’s defense, it was a really big check.

      • Ken Kukec
        Posted January 15, 2013 at 3:17 pm | Permalink

        “I always get a laugh out of those who natter on and on about affirmative action.”

        It’s especially rich when the nattering turns to their bitterest epithet, “quotas.”

        Never bother to mention that, for a couple of centuries, the white-guy quota was 100%, do they?

        • Gary W
          Posted January 15, 2013 at 4:22 pm | Permalink

          “The son should pay for the sins of his father” (and grandfather, and great grandfather, etc.) probably isn’t a winning argument, which is one reason why racial quotas are so controversial.

          • microraptor
            Posted January 15, 2013 at 8:39 pm | Permalink

            I see it less as punishing rich white guys with unimpressive GPAs and more as giving a chance to all the people who aren’t white, male, or rich a chance to receive the same benefits.

            • Gary W
              Posted January 15, 2013 at 9:34 pm | Permalink

              I don’t think giving a job or a place in college to one candidate instead of another, better-qualified candidate simply because of his race does what you suggest, especially where there’s no clear evidence that the beneficiary is actually disadvantaged. It seems unlikely that a privately-schooled child of affluent, well-educated black parents is disadvantaged in comparison to a publicly-schooled child of poor, uneducated white ones. I doubt that even most Democrats support racial quotas. Bill Clinton certainly didn’t, and I doubt President Obama does either.

              • microraptor
                Posted January 15, 2013 at 11:30 pm | Permalink

                Do you have any actual evidence of cases where someone who wasn’t admitted into an Ivy league college because they admitted a less qualified candidate who was a minority? An actual documented case, not just an anecdote? And what, precisely, is the point of your statement about rich African Americans vs poor Caucasians?

                Have you actually looked at George W Bush’s or Mitt Romney’s posted high school and undergraduate GPAs? They were entirely unimpressive and there can’t be a case made that either one got accepted into college, especially not Yale or Harvard, based on merit. Nor did either one of them secure the jobs they got afterword based on merit. They were the beneficiaries of family connections and nepotism, so pardon me if I find the argument that “more qualified white guys are losing their educations and careers to under performing black guys” less than convincing.

              • Gary W
                Posted January 16, 2013 at 9:53 am | Permalink

                Do you have any actual evidence of cases where someone who wasn’t admitted into an Ivy league college because they admitted a less qualified candidate who was a minority?

                I’m not sure what the point of your question is here. If a racial quota does not cause more members of the preferred race to be admitted than would be admitted without the quota, what’s the point of it? Either race is the deciding factor in some cases, or the quota is useless. (I also don’t understand the point of your reference to “an Ivy league college.” Racial quotas may be applied to any type of college).

                Have you actually looked at George W Bush’s or Mitt Romney’s posted high school and undergraduate GPAs? They were entirely unimpressive and there can’t be a case made that either one got accepted into college, especially not Yale or Harvard, based on merit.

                I’m not defending whatever preference you think Bush or Romney received. I’m criticizing racial quotas.

              • Gary W
                Posted January 16, 2013 at 9:58 am | Permalink

                And what, precisely, is the point of your statement about rich African Americans vs poor Caucasians?

                That racial quotas can cause a disadvantaged candidate to be passed over in favor of an advantaged one. Race is not a reliable proxy for advantage/disadvantage.

              • Ken Kukec
                Posted January 16, 2013 at 5:02 pm | Permalink

                I never meant to suggest that I was in favor of racial “quotas.”

                I did mean to touch upon whether the most strident foes of “quotas” — you know the type: the ones who pronounce the Q-word as though they’d just bit down on a mouthful of something noxious; the guys who think racism first reared its heinous visage on the North American continent following enactment of the Civil Rights Act of 1965; the type that never utters that word but that it’s conjoined with the alliterative adjective “reverse” — whether any those guys ever pause to let it sink in what a swell quota system they (or their not-so-distant progenitors) had benefit of.

                The segment of the political spectrum that nowadays squawks the loudest anytime it catches a whiff of “affirmative action” in the air was … well, surely not silent back then; no, they fought nail-and-tooth to hang onto that advantage, asseverating how it was guaran-goddamned-teed by their cherished “right of association.” (And who could be so cynical as to question their sincerity? Though it maybe bears noting that this supposed right, so beloved by The Old Right, finds no more support in the text of our U.S. Constitution than does the “right of privacy,” the one that sets those one-and-the-same folk to sputtering with rage every time it’s cited to support women exercising control over their bodies’ reproductive functions.)

          • Ken Kukec
            Posted January 15, 2013 at 11:52 pm | Permalink


            But you also can’t call time-out in the ninth inning, where for the first eight only one team has been given its at-bats and the other’s been consigned to the field, then claim the ball-game is now official and fair because from here on out we’ll be carefully calibrating the strike zone, and the height of the pitcher’s mound, and the length of the base-paths so that everybody‘s going to be playing by the exact same rules.

            Then again, this is a complex issue — one that thoughtful judges, legislators, and educators have been struggling with for quite some time — an issue that’s unlikely to be illumed by our coming on fora like this to trade simplistic similes and inapt analogies.

  6. Larry Gay
    Posted January 15, 2013 at 4:00 am | Permalink

    For the life of me I cannot understand why someone trying to find the truth or even good solutions would not grasp the opportunity of discussing his ideas. Thomas reminds me of the dullard in the last row of the classroom who never dares say a word.

  7. mordacious1
    Posted January 15, 2013 at 10:47 am | Permalink

    I’ve never thought of Thomas as Scalia’s clone, that would be Scalito.

  8. Diane G.
    Posted January 19, 2013 at 1:03 am | Permalink

    What a fascinating discussion this post has elicited! Once more I’m amazed at the knowledge & expertise to be found among WEIT regulars.

  9. 86aynrand
    Posted May 4, 2013 at 11:16 pm | Permalink

    Thomas is a constitutional psychopath. He believes his entire life has been one of victimization and he’s determined to get even. It takes brains to ask pertinent questions. He’s shown us 20 years of having none.

    Bush gave this self-hater a wonderful life which he is using to punish the majority of our country while making a bundle. It’s not his “understanding” of the constitution – it’s his lazy incurious mind finding it oh so easy to use this ridiculous excuse to explain his disinterest as justice.

    The GOP is purposely and successfully turning democracy into corporate governance. The frontmen are low thinking puppets. Their masters are brilliant.

  10. Posted June 22, 2013 at 1:22 am | Permalink

    Je suis une jeune fille de quarante et un berges .
    Je m’appelle Alexandrin.
    Ce que je fais , paysagiste . Est-ce un défaut que d’être une vraie prune ?

  11. Posted July 9, 2013 at 7:13 pm | Permalink

    J’ai quarante ans .
    Je me nomme Claudette.
    Ce que je fais : photographe animalière ! Je suis plutôt d’un caractère réservé.

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