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.

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