A story is told about Robert L. Bartley, late editor of the Wall Street Journal, and his penchant for long silences. He is supposed to have once taken a job applicant to lunch at which, though the two shared a meal, neither spoke a syllable. That is no doubt apocryphal; the job applicant probably said something. George Washington had a taciturn streak, as did President Coolidge, known as “Silent Cal.” Bartley made them seem like magpies. Not everyone likes being left alone with his thoughts. But rarely does anyone get as upset about it as Jeffrey Toobin of the New Yorker appears to be in respect of Clarence Thomas.
Toobin came unglued at the disinclination of Thomas to talk in Court, though what set off the celebrated scribe isn’t entirely clear from the blog post he wrote. Toobin began by noting that it has been eight years “since Clarence Thomas last asked a question during a Supreme Court oral argument.” He went on to assert that the justice’s behavior on the bench “has gone from curious to bizarre to downright embarrassing, for himself and for the institution he represents.” It’s not my purpose here to disparage Toobin’s reporting so much as to reflect on the phenomenon of a silent justice.
Let me just say I rather like the idea. The problem started rubbering around my mind in respect of the Federal Reserve. I was writing an editorial about the decision of the Fed chairman at the time, Ben Bernanke, to hold quarterly press conferences. The founder of the website TradeMonster.com was quoted in one report as predicting “a giant ramp up in volatility” ahead of Mr. Bernanke’s appearance: “Traders react to one word removed from a paragraph in the policy statement and now he’s going to hold a press conference?”
It turns out there’s a tradition of silence in central banking. In 1929, the deputy governor of the Bank of England was asked to explain the lack of explanations from Threadneedle Street. His interlocutor, Lord Keynes himself, was serving on a parliamentary committee looking into the looming depression. He asked the deputy governor, Sir Ernest Harvey, whether it was a practice of the bank never to explain what its policy was. Sir Ernst suggested that it was the bank’s practice to “leave our actions to explain our policy.” When Keynes plowed on, Sir Ernest famously explained: “To defend ourselves is somewhat akin to a lady starting to defend her virtue.”
The situation with Justice Thomas is a bit different. He’s not being asked to defend—or even explain—himself, which he does with adequate frequency in written opinions, concurrences, dissents, and even speeches. What Toobin is talking about is Thomas’s failure to say anything in open court, when the other justices practically tumble over the table in their eagerness to interrupt the lawyers who have come before them to argue the nation’s most intractable cases. Their questions are the first hint anyone has of how the Court might, usually some months hence, come out on a case.
Thomas did, a year or so back, make from the bench a nine-word quip about Yale- or Harvard-educated lawyers. It took half a month to decipher it, but nonetheless the utterance begat what the Washington Post called a thousand headlines. The justice, as James Taranto pointed out, has long since explained his silence as a matter of courtesy. These poor lawyers have prepared for a lifetime for the chance to appear before the high bench. What is the point of jumping on them the minute they start talking? Yet Toobin is troubled by the fact that during arguments Thomas has confined himself to listening, stroking his chin, and, in recent sessions, reclining in a leather chair “pitched so that he can stare at the ceiling.”
Even though Justice Herself wears a blindfold, Toobin complains that Thomas’s “eyelids look heavy.”
Holy Harpocrates!
In fact one doesn’t have to dig too deeply into this question to discover that justices’ grilling lawyers pleading before them is a relatively recent phenomenon. Justice Samuel Alito was quoted by the Associated Press some time ago saying, “Justice Thomas’ practice is, as far as I can tell, exactly the same as John Marshall, regarded by many as the greatest justice ever.” The reticence from the bench in an earlier time may have even made for livelier, and more useful, arguments among counsel.
This point was made in an address to the Court’s historical society by a former deputy solicitor general, Stephen Shapiro, who had hilarious descriptions of lawyers such as Daniel Webster and William Pinkney—the latter once described by Marshall as the greatest man he had ever seen in a court. They played to the public, who came to court as if it were the Grand Opera (imagine interrupting Maria Callas for a question in the middle of an aria). On two occasions at least, Shapiro reports, the emotional arguments of counsel prompted Chief Justice Marshall to start crying in open court.
I wouldn’t want to suggest that we moderns lack for lawyers of Pinkney’s ilk. Our own Supreme Court bar has its giants (Theodore Olson, Miguel Estrada, Nathan Lewin, Paul Clement, to name but a few). But it’s a fact that justices did not always treat lawyers the way they do today. The modern trend began, it seems, in the era of the Warren Court. Lawyers are often limited in time to thirty minutes. If part of the half hour is taken up with interruptions from the bench, what is the point of it? Particularly given the fact that the judges go back and write the Court’s opinion and their concurrences and dissents.
Which gets to a deeper point about the consternation over Clarence Thomas’s silence. If a judge’s reserve on the bench is a virtue—a view to which I’ve come—what about all the written explanations from the Nine? When one stops to think about it, why do we need so much verbiage? What would happen if the majority judges forewent all the explaining and the dissenters all the kvetching and the court simply had its clerk issue the rulings? Circuit riders, say, rule that Obamacare is an unconstitutional use of the taxing power. Secretary Sebelius goes to the Nine. They send out a one-word order: “Denied.”
An oversimplification, to be sure, but think about the Federal Reserve. Whatever the amount of yakking its chairman has begun doing, what really matters is the interest rates it sets or the securities it buys and sells. Such declarations speak louder. There is a lot to be said for Sir Ernest’s retort to Lord Keynes about leaving actions to explain policy. All the so-called “forward guidance,” to use the new lingo for the yakkity-yakka from central bankers, is an attempt not only to pre-empt private enterprise, the free market, and Congress, but also to cover up the fact that the Fed is operating with fiat money.
So are we in an era of fiat law? Do we have any more real laws, argued about and passed by a legislature and signed by a president? Or do we have the mountain ranges of prose—briefs, majority opinions, dissenting opinions, writs—and vast transcripts that surround the law like a husk? It’s not entirely a right-left question. John Marshall, after all, was hardly a conservative. And I’m a fan of all elements of the Grand Opera at the high court. I’ve come around, though, to the view that all the prose—oral and written—that now envelops the law has become a problem. If Bob Bartley were still alive, I’d take it up with him over lunch, though I’d be surprised if he said anything.
