INTRODUCTION :: The oral argument before the United States Supreme Court in Morse v. Frederick began at 10:03 a.m. in typical fashion, like a high-speed game of chess. Forty-two seconds into the argument, Justice Anthony Kennedy cut off the advocate in mid-sentence. For the next hour and ten minutes, the Justices interrupted the lawyers 152 times. Justice Stephen Breyer, a former law professor, posed a multi-part hypothetical; Justice Ruth Bader Ginsburg, a civil procedure scholar, asked about a key detail in the record; Justice Antonin Scalia’s rejoinders drew laughs from the audience.
The Court wrestled during the argument with the reach of a student’s First Amendment right to unfurl a banner at a school-sponsored, off-campus event. Yet, during the hour-long exchange, no Justice questioned the basic premise that students retain some First Amendment rights at school. However, when the Court issued its opinion, Justice Clarence Thomas in a concurrence announced an extraordinary position: that the First Amendment does not apply at all to students. He wrote that the Court should overrule the leading precedent, Tinker v. Des Moines Independent Community School District, which has remained good law for thirty-eight years. Justice Thomas’ conclusion surely surprised the parties. None had briefed the issue, and Justice Thomas had not asked them about it during oral argument.
In fact, Justice Thomas rarely utters a word from the bench. Since 2004, when oral argument transcripts began identifying Justices by name, Justice Thomas has made just eleven comments -while sitting through more than 400 hours of argument. He asked his last question on February 22, 2006, more than three years ago.
Yet, rarely has a Justice said so little but had so much to say. As Professor Erwin Chemerinsky wrote: “Justice Thomas is the most radical member of the current Supreme Court, and likely one of the most radical justices in history in his desire to overrule precedent and dramatically change the law.” Justice Thomas’ jurisprudence would revolutionize constitutional law, overturning precedents in areas of criminal procedure, the Takings Clause, reproductive rights, First Amendment rights, and the separation of church and state, among other areas.
This Note argues that Justice Thomas’ profound silence during oral argument undermines the Court’s deliberative process-and weakens the legitimacy of the far- reaching conclusions, like those in Morse, that Justice Thomas reaches without the benefit of briefing or oral argument. By removing himself from oral argument, Justice Thomas’ opinions do not benefit from the full adjudicative process designed to test theories in open court. Many of his opinions, therefore, read less like the product of actual litigation, and more like constitutional commentary on issues related to-but not directly raised in-a case. Justice Thomas’ silence on the bench is more than a peculiarity; it allows him to announce new theories of the Constitution without vetting those theories in open court.
November 2014, Vol. 66, No. 6
Lily Kahng, The Taxation of Intellectual Capital