February 24, 2011

Unlike Justice Clarence Thomas, the California Supreme Court sees the benefit of oral argument

Yesterday’s Los Angeles Times carried an article marking an unusual milestone: U.S. Supreme Court Justice Clarence Thomas’s fifth anniversary of sitting in silence during oral argument while his eight colleagues pepper advocates with questions. According to the article, Justice Thomas has explained his refusal to ask questions in the following terms: “the oral arguments are unnecessary to deciding the cases, and perhaps even a sideshow. The justices rely on the written briefs and the lower-court opinions in making their decisions.” The article quotes Thomas as saying: “‘So why do you beat up on people if you already know? I don’t beat up on them. I refuse to participate. I don’t like it, so I don’t do it.’” Justice Thomas’s views are not unlike those of Professor Myron Moskowitz of Golden Gate University law school, who recently proposed abolishing appellate arguments in California, as we discussed here.

The Times article caused us, as appellate advocates, to reflect upon and appreciate the fact that none of California’s Supreme Court justices follow Justice Thomas’s lead. We know from experience that all of the justices ask frequent and insightful questions at argument, and that these verbal exchanges are an important and integral part of appellate advocacy, a topic we discussed at length in this post. Besides, as an advocate, nobody likes a “cold bench.” That is, virtually all appellate lawyers would agree that it is greatly preferable to spend an entire argument responding to challenging questions from the bench than to deliver an uninterrupted speech.

UPDATE: This article from NPR identifies a number of other reasons that Justice Thomas has given for his silence at oral argument, including his preference for learning by listening and his early difficulties with public speaking because of the accent he had as a child.

3 Responses to “Unlike Justice Clarence Thomas, the California Supreme Court sees the benefit of oral argument”

  1. Please, do not link my views with those of Justice Thomas. My views are NOT “not unlike” his.

    I entitled my LA Daily Journal article “Abolish Oral Argument?” as a tongue-in-cheek way of calling attention to the wasteful ineffectiveness of oral argument under current California practice – where the appellate justices refuse to share their tentative opinion with counsel before the argument.

    Myron Moskovitz

  2. I agree with Mr Moskovitz regarding tentatives. He’s right. What’s important to the parties may not be important to the court. I’ve seen appellate judges who seemed disinterested in oral argument by not asking questions. I’ve often felt that the appellate judges were annoyed because they already made up their minds. If that’s the case, what’s the harm with a tentative? I started an argument once by asking the court for a tentative. It was met with silence. They don’t always get it right. I pray that one day, tentatives will be required.

  3. I saw a C-Span event more than 5 years ago where a student asked Thomas why he doesn’t ask questions. He didn’t say it was his accent. He first said that he doesn’t ask questions because his colleagues ask all the questions that need to be asked. He then said, “to be honest” the real reason I don’t ask questions is _______. His answer was shocking. He wasnt joking or being facetious. I won’t repeat it because I don’t remember it verbatim and I don’t want to be accused of putting a judge in a bad light. If someone can find that video or Google his response, it’s interesting.

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