The Associated Press ran an article recently about the fact that Clarence Thomas hasn’t asked a single question during oral arguments in the Supreme Court in over two years. Apparently, the last time he asked a question was on February 22, 2006, 144 cases ago.
Thomas claims that he doesn’t need to ask questions to do the job. When asked at a speaking engagement why his colleagues ask so many questions, he responded, “That’s a fine question. When you figure out the answer, you let me know.” He has also said that he sees no need to engage in the back-and-forth just to hear his own voice, which would seem to imply that he believes some of his colleagues do exactly that. These statements surely do nothing to endear him to his colleagues on the Court, but at least he’s being honest.
I’m no fan of Clarence Thomas, but it seems to me that he’s not being paid to ask questions; he’s being paid to produce opinions. Therefore, how many opinions he has authored seems like a far better measure of whether he’s doing his job than is how many questions he has asked. By that measure, he seems to be holding his own. I looked at all of the decisions issued by the Court in the name of a particular Justice since February 22, 2006. Here’s how many were authored by each Justice:
| Justice | # of decisions |
|---|---|
| Stevens | 21 |
| Scalia | 19 |
| Roberts | 17 |
| Kennedy | 17 |
| Ginsburg | 17 |
| Breyer | 17 |
| Thomas | 16 |
| Souter | 14 |
| Alito | 11 |
From these numbers, it appears that althought Thomas is not exactly a shining star in the firmament of Supreme Court Justices, he’s also not the do-nothing which the AP article might have us believe.
On the other hand, a more comprehensive analysis, which I am not qualified to perform and wouldn’t have the time for even if I were, would be to examine the complexity of the decisions issued by the Court in that time period with the goal of determining whether Thomas or any other Justice is authoring more “light-weight” decisions than the others.
I think it’s rather interesting that the author of the AP article, Mark Sherman, didn’t include an analysis of this sort. It’s a rather obvious thing to do, so I wonder if perhaps Mr. Sherman omitted it because it did not serve his agenda.
So, a Justice of the Supreme Court can be a complete imbecile and still appear to do his job merely by remaining silent during oral arguments, claiming that s/he doesn’t “need” to ask any questions, and rubber-stamping the opinions written by his/her clerks?
How much oversight do the Justices exercise over what their clerks write? Do you think that different Justices exercise a different amount of oversight? I wonder if it would be interesting to compare the percentage of concurring opinions written alongside each Justice’s opinions. Might a higher percentage of concurrent opinions indicate that a particular Justice’s opinions are inferior to his/her colleagues’, since they are less likely to sign onto them?
I disagree. The questioning during SCOTUS arguments serves to challenge the lawyers to support their arguments, and often to go into areas that they were hoping to paper over.
Conversely, I doubt that the justices do much of the actual writing of the opinions that they sign. That’s what clerks are for. And IIRC they don’t actually volunteer to write the opinions; the Chief Justice selects someone from those who voted to sustain and someone from those who voted to overturn and assigns them (and their clerks) the task of writing the opinions. (And then if a justice doesn’t want to sign on with the majority or dissent then the Justice can choose to write a concurring opinion.) So I think your stats on the number of opinions written in the name of each justice are fairly meaningless.