After eight years of silence (so long as you don't count last year's near unintelligible mumble), Justice Clarence Thomas finally spoke during Supreme Court oral arguments, albeit with an odd choice of topic.
Speaking of silence, moments before he spoke up, the House of Representatives passed Articles of Impeachment against the Justice, accusing him of nonfeasance of duty due to his years of silence and repeated refusal to adhere to stare decisis.
Eight years. It's been a long time since Justice Thomas uttered a question in oral arguments, but for Kevin Loughrin's counsel, it wasn't long enough.
In the midst of oral arguments about whether the government must prove that the defendant intended to defraud a bank and expose it to risk of loss in prosecutions under 18 U.S.C. § 1344, Justice Thomas interjected with a series of questions about the Interstate Commerce Clause.
"Counsel, would you -- would you agree that this Court has been fundamentally misinterpreting the Commerce Clause for the last century or so?," Justice Thomas asked.
"Respectfully, I'm not sure what that has to do with my client's case," Loughrin's attorney replied.
The colloquy continued, back-and-forth, until a high-pitched voice emerged from behind the bench, telling Justice Thomas to go back to sleep. Apparently, the pneumatic lift on Justice Ruth Bader Ginsburg's chair malfunctioned, dropping her down behind the bench.
Meanwhile, in the House of Representatives, Democratic law-makers, frustrated with Justice Ginsburg's refusal to retire, tried to open up a different seat before President Barack Obama leaves office.
Citing a recent article by Jeffrey Toobin of The New Yorker, the Articles of Impeachment accuse Justice Thomas of nonfeasance, essentially arguing that because of his "disgraceful silence" during oral arguments, he is not doing his job at all -- that he is effectively a no-show on the Court.
The Articles passed in large part because there was an anti-Obamacare rally on the Court's steps. Unfortunately for the tardy Republican lawmakers, oral arguments in the contraception mandate were last week, and they were ticketed for violating the "no protest" policy on Court grounds. Whoops.
From his confirmation, to his controversial stances on divisive issues, Justice Thomas has been a magnet for criticism throughout his time on the High Court's bench. Perhaps no criticism was as passionate, however, as that of Toobin, who noted first that Thomas had no respect for stare decisis:
"No one, however, has been more outspoken about this conflict, at least on paper, than Thomas, the most extreme originalist on the Court. Scalia believes that the Court owes some deference to its own precedents, even if they differ from the original meaning of the text. Thomas is happy to lay waste to decades, even centuries, of constitutional law."
That paragraph was sandwiched between laments about Justice Thomas's continuing refusal to speak. "By refusing to acknowledge the advocates or his fellow-Justices, Thomas treats them all with disrespect. It would be one thing if Thomas's petulance reflected badly only on himself, which it did for the first few years of his ludicrous behavior. But at this point, eight years on, Thomas is demeaning the Court," Toobin argued.
"Imagine, for a moment, if all nine Justices behaved as Thomas does on the bench. The public would rightly, and immediately, lose all faith in the Supreme Court. Instead, the public has lost, and should lose, any confidence it might have in Clarence Thomas."
Feel free to speak up with your thoughts on the matter via Twitter @FindLawLP, but we're not so sure that we agree with Toobin here. In between criticisms of Thomas, the article notes that the conservative justice has played a large part in the Court's jurisprudence, especially in regards to Second Amendment rights and campaign finance.
He's making his impact his own way, while letting those who enjoy the spotlight (ahem, Scalia) crack jokes during the oft-irrelevant oral arguments.
A final note: Thomas didn't actually speak, nor was he impeached. Today is April 1.
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