German philosopher Immanuel Kant defined his Categorical Imperative this way: “Act only according to that maxim whereby you can, at the same time, will that it should become a universal law.” In other words, when making moral decisions, choose to do what you would like to see everyone do in the same circumstances. It’s not a perfect maxim, and I don’t subscribe to it, but it is sometimes instructive to use it as a test of moral behavior. If what you think is a just moral stand would result in disaster if universally adopted, then maybe there is a problem with your judgment.
I think we can apply this test to Clarence Thomas’s determination not to participate in oral arguments at the Supreme Court.
As of this Saturday, February 22nd, eight years will have passed since Clarence Thomas last asked a question during a Supreme Court oral argument. His behavior on the bench has gone from curious to bizarre to downright embarrassing, for himself and for the institution he represents…
…Neither [Sonia] Sotomayor nor [Elena] Kagan has ever heard Thomas ask a question in the courtroom. (Yes, Thomas did break his silence last year to utter a single stray wisecrack, but that hardly counts as participation.)
Jeffrey Toobin raises the specter of the Categorial Imperative with this remark:
By refusing to acknowledge the advocates or his fellow-Justices, Thomas treats them all with disrespect. It would be one thing if Thomas’s petulance reflected badly only on himself, which it did for the first few years of his ludicrous behavior. But at this point, eight years on, Thomas is demeaning the Court. Imagine, for a moment, if all nine Justices behaved as Thomas does on the bench. The public would rightly, and immediately, lose all faith in the Supreme Court. Instead, the public has lost, and should lose, any confidence it might have in Clarence Thomas.
It’s an astute observation. Justice Thomas justifies his silence by arguing that he learns everything he needs to know by reading the lawyers’ briefs, and he thinks that his fellow Justices interrupt too much. But this moral stand is only made possible because his fellow Justices don’t follow along. If no Justices ever asked questions, then arguing in front of the Supreme Court would seem as pointless as representing a client in a Stalinist show-trial.
I don’t think this is a decisive argument against Thomas’s silence, but it presents a strong challenge.
Thomas is an embarrassment for not opening up his mouth, and Scalia’s an embarrassment for opening his mouth up too much.
It’s certainly possible that his silence creates the least possible amount of embarrassment.
I’m sure Thomas thinks that’s exactly correct. He may very well be following Kant’s advice and thinks that if there was no presentation by the appealing parties at all, the productivity of the court would improve and the pointlessness of the debate avoided.
Maybe I’m wrong, but it’s my impression that no one cites the verbal exchanges as precedent in legal briefs – unless it’s supported by the written opinion of the judge.
Thomas and his wife are fools for a variety of reasons, but questioning public posturing by USSC justices as other than performance art for the self-indulgent is not one of them.
Well, sure, oral arguments present the opportunity for Chief Justices to posture and preen, and some do so. That is not the purpose or sole use of oral arguments, though.
Legal opinions sit on a page. They can be argued for or against: the attorneys for plaintiff and defendant fill that role. The strengths and weaknesses of the arguments presented in their filings and in previous Court actions can be pointed out, expanded upon, and interrogated: the Justices, ideally, fill that role.
A judge may enter oral arguments with a point of view on an aspect of an argument which is effectively rebutted by one of the attorneys, or one of the other judges. A good judge would be open to taking this into account. Thomas appears to present himself as unswayable, that he knows all he needs to know before orals. Has he really gone through hundreds of cases without being surprised by a particular point made by an attorney or another Justice that is worth responding to?
Occam’s Razor is appropriate here. Thomas arrived to the Supreme Court with a less accomplished law career than the other Judges. His silence implies a fatal lack of curiosity, or a severe lack of confidence that his own arguments for his positions could influence others. There are other explanations, I suppose, but his relatively undistinguished career before he made the Supremes make these two options the most likely ones in a broad sense.
Think about it: if Thomas felt confident in his judgments on cases, wouldn’t he attempt to influence the other judges and the American public to see it his way? His willful and complete withdrawal from the lively battlefield of ideas invites negative speculation.
Today’s nit to pick: “categorical”, not “categorial”.
Other than that, excellent as usual, Boo. The man is an embarrassment to the human species.
thx. spellcheck didn’t flag that.
“The public would rightly, and immediately, lose all faith in the Supreme Court”
That ship has already sailed, in Dec 2000, with an unsigned decision “limited to the circumstances of this case, and not for precedent”
Wait did the Supreme Case decide a case in 2000? Oh yeah, that was kind of bad….
Most people have completely forgotten it.
There are two theories of Justice Thomas on the left.
The more popular one is that he’s a below IQ incompetent who was given the job (and his previous jobs) because of his staunch loyalty to far right conservative causes while checking the African-American box. This theory holds that he can’t really follow the arguments and for his written opinions he relies on his legal assistants who in turn borrow heavily from the other justices, particularly Scalia but in recent years Alito as well.
Backing up this theory are articles that have analyzed his written opinions and a) find a very large amount of near plagiarism and direct quotes of the other conservative justices, and b) find a lack of consistent thought when comparing opinions between court years, when of course different legal assistants were employed.
A second theory, popular at the liberal site Lawyers, Guns, and Money, argues that the first theory is an example of liberal racism. That in fact Thomas’ opinions, while not particularly strong intellectually, do have a consistent legal theory from year to year and differ in important ways from his conservative colleagues. Also: that his choice to not participate in the court discussion is valid because the participation of the other justices is so extensive he can play the quiet role.
I just bring this up to state that there is a second liberal viewpoint a lot of liberals don’t hear. I like the LGM site and while I (of course) don’t agree with all opinions stated they are usually worth reading because they are well thought out.
Personally I don’t know and I’m not going to spend the time digging through his opinions to come up with my own opinion of which theory is right. I just consider the man pure evil, along with the others in the Scalia 5 coalition – both present and past members.
It’s so obviously the first one.
There were plenty of Black Republican judges, who had experience, that could have been nominated.
They didn ‘t want any of those, because those Black Republican judges actually thought and had experience.
They chose this brown-nosing slave catcher because they wanted a rubber stamp ideologue on the court.
As I mentioned recently I’m not really a Kantian. Sometimes the right thing to do is the wrong thing generally, or you couldn’t live with yourself if you did the right thing.
Anyhow I basically think the silent Thomas situation is grounds to question his sanity.
I’ve always thought of the Categorical Imperative kind of from the other way. Whenever I have to make a moral decision, I try to make it in a way that would result in a desirable outcome if it were applied as universal law. If you pair that with the Golden Rule, I think it can make the foundation of a pretty decent moral code. Yeah, it’s not perfect — what moral system is? But I think it’s a pretty good place to start.
And as far as Thomas goes, I think the fact that he was ever confirmed in the first place is a travesty of justice.
I think Clarence Thomas’ silence is essentially camouflage for his own understanding of himself and incessant fear of the circumstance of his life. One: he is intimately aware of his own inadequacy as a jurist thinker and that he was “given” this honor without commensurate merit or commitment. Two: He knows he can sit In stoic, even arrogant, non-participation and hide within the honor of the high court, protected by the code of silence and an unwavering compliance with the Republican Protectorate. He reaps rewards of stature and benefits as a perfect House Negro.
I think writers on the left make a mistake when they collectively focus more on Thomas’s silence than his conflicts of interest. Silence is his prerogative and doesn’t violate any fundamental principle of justice. Discussing his silence leads inevitably to questions of intelligence and then to accusations of racism, so it’s counterproductive. Also Thomas is not a conservative leader on the court, so we miss talking about harm done by its more influential members.
On the other hand, if the conflicts of interest are real then they need to be continually exposed and should eventually harm his reputation. They might also lead to some kind of long-term reform that would be helpful in the face of future problems.
This.
I don’t care that Clarence Thomas doesn’t ask questions. Appellate courts focus on briefs and what happened in the trial.
If you assume that every other justice is intelligent, than Thomas is justified if letting them ask the questions. Not to mention, the fucking clerks write the opinions anyway.
What should be focused on is the outright conflicts of interest this piece of shit trashbag has with his wife, his politics, and his role on the bench.
Focus on what gets him removed from the court, not what makes him a big ol’ poopy head in your opinion.
I think the LGM theory – that he has a consistent view of the universe – is correct, but I also think it gives him too much credit.
Justice Thomas is a very smart man, but by standards of Supreme Court Justices of the last 40 years or so, he was underqualified. (More qualified than Harriet Miers, though.) Thomas probably wasn’t really qualified for the D.C. Circuit when he was nominated, and he only served 19 months on that court before being nominated for the Supreme Court. Justice Kagan, who served as Solicitor General and Dean of Harvard Law School, probably is the next-least qualified, which just shows you how big the gap is.
The problem with the Thomas theory of Constitutional law is that it quickly loses connection to the modern world. Even Scalia is willing to make some concessions (although his logic gets torn apart by them sometimes – try explaining why his gun control opinion allows regulation of cannons in light of the existence of privateers in the 18th century), but Thomas sees everything through a very narrow window.
And one thing Thomas is saying by not asking any questions is that his principles decide cases without having to get involved in the messiness of teasing out what the implications of those principles might be. A lot of what goes on at oral argument is about what a particular decision would mean in the long run – when it would apply and when it wouldn’t, and how a ruling would affect future decisions. Thomas doesn’t care about that at all.
Clarence Thomas is an unqualified brown-nosing ass kisser.
He wasn’t remotely qualified for the position that he holds.
That he’s a mute on the Court only adds insult to injury.
Why would Sonia Sotomayor, who was the most experience jurist to be nominated in 70 years be quiet?
Or Elena Kagan, who argued before the Supreme Court?
They were qualified for the job that they now hold…they won’t embarrass themselves when they open their mouths.
The same can’t be said of Unca Clarence.