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Jeffrey Toobin’s Article in Disgraceful

In Defense of Clarence Thomas

In what may be a particularly slow news cycle now that the Olympics are drawing to a close without a terrorist attack and the Ukraine president being ousted, Jeffrey Toobin penned an editorial in the New Yorker characterizing Justice Clarence Thomas’ now infamous silence on the bench as “disgraceful.”  Toobin is the “go to” of the New York Times whenever there is a major Supreme Court decision or oral argument.  His face also shows up on a variety of news outlets from CNN to Fox to MSNBC.  Frankly, this writer believes that Toobin is vastly over-rated as a Supreme Court watcher and analyst.  For example, Toobin, in an address at Harvard Law School, said his favorite Justice was the retired David Souter who lived a 19-century existence in New Hampshire.  Somehow in the mind of Toobin, this is more “normal” than Clarence Thomas not asking questions during oral argument.  In fact, that is the only negative he can heap on Thomas.

If one reads the Toobin article, at first we get the impression that there is nothing “wrong” with Thomas.  He refers to Thomas as the intellectual “godfather” of recent Supreme Court jurisprudence in certain areas.  Other articles by other Court watchers less critical of Thomas have come to the undisputed conclusion that Thomas is his own man when it comes to casting votes as opposed to the Scalia clone many portray him to be.  Although he may be in the minority in certain cases, his dissenting views are well-written, well-researched, and convincing.  For example, his concurring opinion in the Heller gun case should be required reading in every history class discussing the fate of blacks after the Civil War.  Most importantly, in my opinion, is the fact that he does not suffer from “intellectual drift.”  That is, Thomas views the Constitution as an immutable outline for a system of government- a set of principles not to be disturbed by the politics of the day.  As such, he stays true to a basic core of principles; Thomas is the most principled member of the Supreme Court.

Compare this with Scalia, for example, in two cases involving the Commerce Clause- the Obamacare case and Gonzalez vs. Raich.  In these cases, even though they both involved the Commerce Clause (although the Obamacare case ultimately did not), Scalia opined in Raich that the federal government can ban the use of medical marijuana when states approve it even when that marijuana is grown, sold, regulated and taxed exclusively in a particular state.  But  Scalia then turns around and says Obamacare  violates the Commerce Clause.  Thomas agreed that the government’s actions in Raich and in the Obamacare cases equally violated the Commerce Clause.  In effect, Thomas sees the Constitution in black and white terms which to me is the most conservative way of viewing the document.  There are few “except in these circumstances” scenarios in the Thomas view.

The real purpose of this article by Toobin was to advance a pet peeve of his- the lack of cameras in the Supreme Court.  He has been a vocal proponent of it since it was first proposed.  Using the recent Noel Canning case’s oral argument, he noted the constitutional and philosophical importance of the case by outlining the questioning by the other eight Justices.  Then he launches into an attack on Thomas because he remained silent.  He further notes the posture of Thomas who sometimes stares at the ceiling and concludes that Thomas is like the bored student in class.  Except, the Supreme Court is not a classroom, Justices are not students and those presenting oral arguments are certainly not teachers.  Thomas is hardly the first Justice to stare at the ceiling, or stroke his chin.  Toobin and others are quick to forget that Thurgood Marshall was hardly the most eloquent Justice at times and near the end, perhaps he should have been more like Thomas and remained silent.  William O. Douglas was a drooling fool at times.

Likewise, many of the questioners today could benefit from some silence.  Breyer certainly asks some great questions and creates some great hypothetical situations.  It just takes him way too many words to get there.  Also, Ginsburg asks some great questions if you can get through all the stutters and “ums.”  Silence is not any indication of one’s awareness or intellectual abilities.  To assert so would be like labeling the shy kid in class who got “A’s” on all their tests “mentally retarded” because they did not raise their hand or participate in class.

And Toobin should know very well how the Supreme Court works.  As a fact, oral argument is perhaps the most public of the Court’s functions…and the least important.  Every Justice comes to oral argument with their mind generally made up on the case.  One study at the University of Arkansas determined that participation during oral argument was not fact-gathering or enhancing opinion formation, but to try to change the mind of another Justice.  The majority of the decision-making process is their judicial philosophy and the merits of the briefs in the case.  Oral argument is not designed to clarify those positions in the brief, although the hypothetical situations sometimes tests the outer boundaries of those positions.

This truth was recently proven by Justice Ginsburg in response to something Toobin holds near and dear- cameras in the courtroom.  Ginsburg, an opponent of those cameras, stated rather succinctly: “It would leave a false impression of the appellate process to think that oral argument is what is decisive in the cases.”    In other words, oral argument is really not that important to the overall process.

So if it is not that important, then why should Toobin have such a problem with a mere one-ninth of the Supreme Court not participating?  And does that raise the level of Thomas’ non-participation to “disgraceful?”  Especially in light of the fact that Toobin uses it to advance his pro-camera-in-the-courtroom agenda?  Toobin and others seem to believe that by the Supreme Court playing to cameras they will somehow get decisions “correct” according to what he defines as “correct.”  Considering that about 95% of how the Supreme Court decides cases, decides to accept cases, and the deliberations and back-and-forth debate over opinions is not open to the public, he makes much ado about nothing other than yet another denigrating attack on Clarence Thomas’ intellect.

When the final book is written on Clarence Thomas, the headline may be that silence really is golden.  Until then, talking heads like Jeffrey Toobin need to stop the attacks.  If Toobin or others want to hear his voice, search him out on Youtube or some other media. Until then, stop acting like Anita Hill and using the man for a personal crusade and agenda.

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