New Yorker staff writer, CNN Contributor, and legal gadfly Jeffrey Toobin over the weekend published an online column noting the eighth anniversary of Thomas’s prolonged silence on the bench. Toobin proclaims Thomas “a disgrace” who “is simply not doing his job.” Toobin writes that, during oral argument,
Thomas only reclines; his leather chair is pitched so that he can stare at the ceiling, which he does at length. He strokes his chin. His eyelids look heavy. Every schoolteacher knows this look. It’s called “not paying attention.”
As noted above, that part of the indictment isn’t so. Sitting only a few feet from Thomas day after day, I often wonder what he is thinking, what books he is consulting, and what he is whispering to Breyer. But I usually think that the Justice is at home.
He’s there, he just doesn’t choose to say anything.
For his own part, Thomas doesn't seem to feel that there's any reason to speak up. "Maybe it's the Southerner in me," he has mused. "Maybe it's the introvert in me, I don't know. I think that when somebody's talking, somebody ought to listen."
But while I am not sure I would label his silence a “disgrace,” as Toobin did, it is a lost opportunity for all of us. Thomas is a complex figure. I think his legal ideas profoundly wrong. Over the years he has expressed deep resentment over the battle over his confirmation—resentment that his admirers may find understandable but that to me seems excessive. (“Whoop-de-damn-do,” Thomas reports himself as saying when confirmed. But winning a Supreme Court Justiceship, even in ugly circumstances, is an honor. A slight show of gratitude might have been becoming.)
Like every justice, Thomas has a number of areas where he can offer special understanding. He's the only justice who has studied for the priesthood and the only one who has worked in state government. Most relevant to the clean air case, he's the only one who has served as head of an important executive agency (in his case, the Equal Employment Opportunity Commission).
And when he has spoken out, the results have on occasion been extraordinary. Consider the 2003 case of Virginia v. Black. Several convicted defendants challenged a Virginia statute that made it a felony to burn a cross where others could see it “with the intent of intimidating any person or group.” Not long before, in R.A.V. v. City of St. Paul, the Court had struck down a city ordinance making it a crime to use any symbol in public with the knowledge that it “arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.” Even though the Virginia law was narrower, many observers were confident the majority would also strike the Virginia law as an invalid ban on “symbolic expression.”
Thomas, the only African American on the court, was born into poverty in a segregated community, and he knows a few things that most of his gently raised colleagues do not. He calmly interrupted: “[A]ren't you understating the—the effects of—of the burning cross? . . . Now, it's my understanding that we had almost 100 years of lynching and activity in the South. The Knights of Camellia and—and the Ku Klux Klan, and this was a reign of terror and the cross was a symbol of that reign of terror. Was—isn't that significantly greater than intimidation or a threat?”
Even heard 12 years later in audio, those words dramtically change both the tone and content of the argument. Suddenly the question was not how the case fit into existing First Amendment precedent but whether the history of the burning cross was in some way different, worse. The Court’s haughty disdain for “political correctness” was displaced by Thomas’s powerful suggestion that the cross was “a symbol of that reign of terror.”
Sure enough, the Court finally held that a statute proscribing cross-burning was different from the statute it voided in R.A.V. By a margin of 6-3, it said that a state could outlaw the fiery cross. Thomas wrote separately to argue that the Court’s opinion construed this power too narrowly: “In every culture, certain things acquire meaning well beyond what outsiders can comprehend,” he wrote. “That goes for both the sacred and the profane.” The result seemed to flow directly out of Thomas’s decision, as an insider, to share the meaning of racial terror with his colleagues and the public.
Toobin rates the influence of Thomas’s opinions highly—more highly than I do. If I were looking for grounds to criticize Thomas, in fact, it would be that his opinions aren’t influential, and that they show an often shocking disregard of a judge’s duty to precedent. His opinions are sometimes powerful—see his agonized dissent in Grutter v. Bollinger, the 2003 affirmative action case—and sometimes, well, silly—see his faux-historical dissent in Brown v Entertainment Merchants Association.
Those who value those opinions should realize that the voice they represent might sway the Court more often—and might educate some of the fellow citizens from whom Thomas seems to feel alienated—if the Justice shared it in the Court chamber as well as on the page.
We can disagree about whether Thomas’s performance makes him a good Justice or a bad one. But as his employers, we all can expect from him the best that he can give. A President appointed him, a Senate majority confirmed him, and he now plays a central role in our democracy. It seems both infuriating and sad that he would choose to play it less fully than he might.
His silence may perhaps not fairly be called a disgrace; but each day it persists represents a lost chance to serve his country and his Court.
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