Writes The New Yorker's Jeffrey Toobin, who probably never had any confidence in Thomas to lose. What Toobin calls "ludicrous," "petulan[t]," and "demeaning" behavior is simply Thomas's silence at oral argument. Toobin invites us to imagine all 9 Justices adopting Thomas's approach to oral argument and dictates how we'd all feel: We'd rightly, and immediately, lose all faith in the Supreme Court.
But that's absurd. If all 9 Justices decided they didn't want to ask questions of the lawyers in person, that would be the end of oral argument. The argument would be complete in its written form, in the briefs. What would be outrageous about that? Personally, I love the theater of oral argument, and I enjoy the early clues about what the Justices are thinking and what they might write in their opinions. And Justices showing up in public and speaking might give us some sense of security that these life-tenured characters are at least somewhat alive and lucid. But switching to putting it all in writing could be a perfectly rational and acceptable approach to accomplishing the work of an appellate court.
I assume Toobin knows the reason why Thomas says he refrains from speaking:
[H]e has said that he is silent out of simple courtesy. He has also complained about the difficulty of getting a word in edgewise on an exceptionally voluble bench.If Toobin's hypothetical were to begin to come true — that is, if the other 8 Justices were to radically cut back on their continual talking, overtalking, and interrupting — we'd get a chance to find out whether Thomas's own explanation is what Toobin must think it is: a lie.
“We look like ‘Family Feud,’ ” he told a bar group in 2000 in Richmond, Va.
Let me make one last observation. Toobin all but calls Thomas lazy: "Thomas is simply not doing his job." If the politics were reversed — and Thomas were liberal and Toobin conservative — I doubt if Toobin would have exposed himself to the risk of accusations of racism.
ADDED: More here.