Justice Thomas Extols the Need to Listen
The U.S. Supreme Court justice least likely to speak up during oral arguments told lawyers gathered in Atlanta on Thursday that judges should spend more time listening and less time talking.
"I believe quite strongly we, as judges, need to take the approach we're here to solve difficult problems, not debate with lawyers," said Justice Clarence Thomas.
Speaking on the 17th anniversary of the day he took his seat on the Supreme Court, the Georgia native delivered a wide-ranging 30-minute talk and participated in a panel discussion on professionalism at the 11th Circuit Appellate Practice Institute.
He spoke before a crowd of about 200 at the State Bar of Georgia headquarters in Atlanta.
Thomas said that he made 30 to 40 oral arguments before appellate courts while practicing law in Missouri, and he was always impressed by how intently the judges listened to arguments.
"They seemed to be soaking up what I was saying," he said.
That behavior was in stark contrast to that exhibited by members of Congress during the 60-plus Capitol Hill hearings Thomas said he attended while working at the U.S. Department of Education and the federal Equal Employment Opportunity Commission in the 1980s.
"Those hearings were different than a court hearing -- you were badgered, you were cajoled," Thomas said.
Instead of being probative, "questions were designed for sound bites, to elicit a laugh," he added.
Thomas also emphasized the importance of well-written briefs when dealing with any higher court. It's the brief, not the oral argument, where the heavy lifting is done, he said.
Well-written doesn't mean long, he added.
"Do not assume that a judge is reading only your brief this week," he said.
"I always wrote a brief thinking: This is the last thing this judge wants to read," Thomas continued, provoking laughter from the audience.
"We overemphasize the oral advocacy," Thomas said during a panel discussion that followed his remarks.
"The written advocacy is far more important," he said.
In nine of 10 cases, the position he had when leaving the bench after hearing oral arguments is the same as when he first sat down.
"I do believe," Thomas said, "you can lose your case at oral argument."
Still, oral arguments are essential on a broader level, Thomas said.
"It's important for people in our society to feel they can have their say," he said.
In response to a question from an audience member about the high court's shrinking caseload, Thomas said the Supreme Court should hear more cases each year. When he joined the Court, the justices would hear about 120 cases a session.
"That is four cases a day. It kept you busy. It gave justices less time to ask questions."
The Court today hears about 80 cases a year.
Thomas emphasized civility in his remarks.
"It's not helpful to say, 'I'm right because that person is stupid,'" said Thomas. It's important to be respectful even when disagreeing, he said. When writing a dissenting opinion, Thomas said he tells fellow justices reading his draft, "If there is anything in there that offends you, it's out."
Not only is it unkind to disparage a fellow justice in an opinion, it is unwise.
"If you insult them,” Thomas said, “it is very difficult in close cases to sway them."
Friday, October 24, 2008
Justice Thomas Speech
From a Georgia newspaper: