Thomas is right. The clerks do 99% of the deciding at the Supreme Court. They read the cases, research the points, decide which is valid, and tell the Justice. The Justice oks it and the clerks write it up and publish it. The talking is just each Justice wanting to get their point across, and changes nothing.

There's a reason the competition to be a clerk is just about the toughest there is. It's power.

I've never argued before the Supreme Court, but I can tell you that before the trial and appellate courts I would never advance an argument before the judges that I hadn't thoroughly briefed. And part of the job of the lawyer is to anticipate the other side's arguments and questions and address those issues preemptively.

I'd be willing to bet there isn't a single thing that any of the Justices could raise at oral argument that hasn't been discussed by both sides in writing - especially at that level, where the individual judges and their doctrines are studied so thoroughly, the stakes are so high, and the lawyers (and their staffs, and outside counsel) so brilliant. Only the best get to argue at the Supreme Court bar.

Oral argument just lets you tell the judge what you think your _strongest_ arguments are.

> It would be a waste of time for attorneys to get
> up before the Court and simply recite their
> briefs.

No, this is like the blog comment thing: People who complain that a blog's comments are boring should write something better, or simply log off and bask in the excellence of their own certainty.

Thomas is the quietest Justice ever; so what? As extremes of behavior go, that's one of the least offensive. This quiet manner doesn't indict his scholarship or reasoning. And truth be told, he's right: At any given moment you're talking or you're listening, never both. Many of us wish people in government would sit quietly and keep their hands to themselves.

The complaint that people -especially chattery, instrusive people- have with Thomas is NOT his demeanor in argument.

Half the justices on the Warren Court rarely asked questions. Justice Ginsburg not infrequently falls asleep during court proceedings. The idea that an oral argument has to be a hot bench and a justice is derelict if he's not frequently interrupting is an after-the-fact creation designed to attack Thomas and nothing else.

You might want to look up the procedure for such hearings.

Out of curiosity, is there an instance where a supreme court decision indisputably changed based on oral arguments?

The older I grow the more I listen to people who don't talk much. -- Germain G. Glien

Don't speak unless you can improve on the silence. -- Spanish Proverb

If you keep your mouth shut you will never put your foot in it. -- Austin O'Malley

A good judge doesn't know the strength of the plaintiff's case until he's heard the defense. -- William Sheffield

A good listener is not only popular everywhere, but after a while, he knows something. -- Wilson Mizner

Always speaking or not doesn't mean anything.

That's not actually Professor Turley, but a guest blogger of his, David Drumm.

I can see a lot of points to the "sometimes it's better to remain silent and listen" crowd,

but it's a huge waste of the one opportunity the Justice has to actually ask a direct representative of the case, and not have to filter through all his clerks' perceptions or the amicus or the rest.

> it's a huge waste of the one opportunity the
> Justice has to actually ask a direct
> representative of the case

I just don't understand how you know this to be so. If you know exactly what everyone's supposed to be saying at any moment of their life (or public service), why allow them any liberty at all? How do you know he didn't try a season of petty bickering at some point in his career, and then take a more rewarding tack?

> it's a huge waste of the one opportunity the
> Justice has to actually ask a direct
> representative of the case

I believe mathematically, economically, procedurally, it's true by definition.

How do you know he didn't try a season of petty bickering at some point in his career, and then take a more rewarding tack?

I assume Justice Thomas is smart enough not to waste his few moments when court is in session with petty bickering.

There is a huge difference between petty pickering at some other point in his career with asking one or two questions of a well qualified, well versed, expert in the case.

It is in fact his one opportunity to talk to these folks. Tarring these new people with the behaviors you propose he had in the past would be wrong of anyone, and especially here, and seemingly promote his own interests over the interest of the court.

As I said, I can understand an argument where he says, everyone else asks brilliant questions, and I find I can learn more by listening.

But if in fact he said, all those bad experiences in the past off the Supreme Court convinced me asking questions in the Supreme Court was futile, then I would definitely wonder who was coming first, Justice Thomas or the American People.

"Out of curiosity, is there an instance where a supreme court decision indisputably changed based on oral arguments?"

You want to think about what you just asked?

A decision is a done deal. You can read the link immediately above the line I quoted and see some of the workings of the court.

Yes, a USSC decision has been reversed by subsequent USSC work. Look at Morton Grove v. Quilici and the recent finding that the DC gun law was wrong - although that's not a "square" reversal, because DC isn't a state.

Yes, a USSC decision has been reversed by subsequent USSC work. Look at Morton Grove v. Quilici and the recent finding that the DC gun law was wrong - although that's not a "square" reversal, because DC isn't a state. -- Radwaste at April 8, 2012 4:17 PM

There is a difference in Morton: The U.S. Supreme Court declined to hear the case, letting the lower court decision stand.

There were never arguments in Morton. In Heller, it held that handgun possession in D.C. was legal. The later McDonald decision said handgun possession extended to the states as well.

Morton was never overturned for the simple fact that on July 28, 2008 the city dropped its prohibition on handguns. The village board voted 5-1 in favor of removing the ban.

Thanks, Jim P!

> Tarring these new people with the behaviors you
> propose he had in the past would be wrong

Duzzen work that way. PEOPLE don't work that way. Everyone has their own way of learning, and of moving through their workday. Some people do coffee first, some do it later in the morning as a reward. Some people want the notes first, some people want the oral report. Each of us has habits that others would find curious or crippling, but they're habits that we regard as the best pursuit of our goals.

By the time a case is at Scotus, it's hard to believe an attorney would be holding precious new insights in his pocket.

The great thing about being a SCOTUS Justice is that you needn't give a flying fuck about what Jack Turley thinks of your work habits.

Thread winner.

Silly argument about oral arguments. Each of us has a different way of understanding and processing information. Some by back and forth argumentation, others by listening to others argue back and forth. And for many people, the brain cells spent formulating one's next argument (for the SC press's benefit, natch) are not available for really and truly understanding the argument.

Think of Justice Thomas as a clever free rider on the argumentative efforts of others. They end up asking 99% of his questions but he gets to focus all of his intellect on the real point: counsel's answers.