Clarence Thomas, known as the U.S. Supreme Court justice who generally just listens while colleagues grill attorneys arguing their cases before the court, got an opportunity to open up last week and explain why he’s so reticent from the bench.
The topic is timely in light of the high-court’s recent three-day hearing on the Affordable Care Act – what some call ObamaCare – and whether the provision requiring everyone to buy health insurance is constitutional. While other justices from both the liberal and conservative branches of the court did not refrain from interrupting lawyers to pose questions or drop heavy hints regarding their own opinions, Thomas held his peace.
Antonin Scalia, like Thomas one of the most conservative voices on the court, went so far as to declare that if the government can force us to buy medical insurance, there might be no limit to its power to mandate other buying decisions. Might we not also have to purchase broccoli, for its purported health benefits? Justice Ruth Bader Ginsburg, in a liberal counterpoint, defended the “individual mandate” as necessary to raise the funds for universal health care by requiring everyone – healthy or not – to buy coverage.
All the pros and cons elicited a feeding frenzy among pundits who got busy speculating on implications for the eventual decision, expected in June. Experience suggests their prognostications may have been for naught. Justices on the Supreme Court, like those on lower courts, are wont at times to “think out loud” in ways that raise or dash the hopes of one side or the other, then they issue rulings that appear to contradict what they’ve just said. Maybe they just like to air views in advance to let us know they don’t decide legal issues based on personal preference.
Although Thomas refuses to play the game, some regard his stance on the Affordable Care Act as a foregone conclusion. The conservative justice used his appearance at the University of Kentucky law school to explain why he mostly stays quiet while others make it tough for lawyers presenting their cases to get a word in edgewise.
It’s pretty simple, Thomas said: “I think that when somebody’s talking, somebody ought to listen.”
Those who vehemently disagree with the justice’s political and social philosophy would do well to take at least this bit of advice. There might be less reason to complain about the dearth of civility in public discourse if more of us kept our mouths shut long enough to hear someone else’s argument before setting out to rip it apart.
If anyone in America ever has the last word, it’s the U.S. Supreme Court. When that august body rules something unconstitutional, its decision is the law of the land. There’s no further appeal. We either have to live with the outcome or amend the Constitution to make it more compatible with contemporary life and custom. Supreme Court justices thus have more than the ordinary obligation to hear all arguments before having their final say. That’s why they call it a hearing, after all.
Thomas, appointed to the high court in 1991 after a bruising confirmation hearing that’s most memorable for a former associate’s testimony that he had subjected her to inappropriate sexual comments (which he denied), praised his fellow justices for practicing mutual respect even when they find little consensus. “I’ve yet to hear the first unkind word spoken in conference,” he said.
In the “real” world, squeaky wheels occasionally get greased and loudmouths often get their way. But who’s really listening?