Justice Clarence Thomas has been one of the most consistently hard-right Supreme Court justices since he joined the court in 1991. In fact, for those who pay more than casual attention to the Supreme Court, he's been consistently and noticeably more hard-line than the angry and vocal Justice Antonin Scalia. Thomas' tenure has featured something else noticeable: his deafening silence in oral arguments later accompanied by fairly extremist written opinions. In fact, in case you don't realize just how quiet he has been, here's what Linda Greenhouse
wrote yesterday for the New York Times...
February 22 was the fourth anniversary of the last time Justice Thomas asked a question during an argument. His silent presence on the bench has evolved into a weirdly compelling example of performance art.
Four years is a hell of a long time. Not all the other justices are chatterboxes, of course, but they usually ask at least a couple questions each time, and Scalia and Sotomayor tend to ask a very high volume of penetrating questions at every oral argument.
But the flip side of the silence from Thomas during oral arguments is the opinion-writing. After just four months on the court, he wrote a dissenting opinion that basically argued the court was wildly overstepping its bounds in a 1992 decision that a Louisiana prisoner had the right to sue prison officials after he was allegedly beaten severely (Greenwood again):
In his dissenting opinion in the Hudson case — which Justice Antonin Scalia joined, making the vote 7 to 2 — the new justice said that the Constitution’s framers “simply did not conceive of the Eighth Amendment as protecting inmates from harsh treatment.” The Eighth Amendment dealt with only the actual sentence, he maintained, and not with conditions inside a prison or deprivations that were not a formal aspect of the sentence. He said the Supreme Court had taken a wrong turn in the 1970’s when it adopted a more expansive view, and he added, “The Eighth Amendment is not, and should not be turned into, a National Code of Prison Regulation.”
A virtually identical case from North Carolina, similarly dismissed in lower courts despite the Hudson precedent, wandered up to the Supreme Court this year, and the court ruled 9-0 that the lower courts had to abide by the Hudson precedents and couldn't dismiss the case. Although he agreed with the ruling itself because nobody had asked the court to reconsider the precedent he'd dissented from in 1992, Justice Thomas sprung into action again with a concurring decision (again joined by Scalia) agreeing that it was the precedent but daring somebody to challenge it so he could take another shot at overturning Hudson. Greenwood writes:
Justices do not casually note that “no party has asked us to overrule” a particular precedent. It is an invitation to send the court just such an invitation, and it is a technique that Justice Thomas has used before to good effect. Concurring in a 1997 decision, Printz v. United States, which struck down a federal background check for gun purchasers on states’-rights grounds, Justice Thomas observed that no one has asked the court to look at the case through the lens of the Second Amendment’s right to bear arms. “Perhaps at some future date” the court would have the opportunity to consider the scope of the Second Amendment, he added, helping to initiate a project that came to fruition in the Heller decision in 2008.
Now, it makes a lot of sense to try to overturn gun laws, if you're a conservative judge. It's a popular thing with conservatives. I don't know about Thomas, but I know Scalia himself is a big fan of guns. So, while we can disagree with the decision, it's pretty obvious that Thomas and Scalia would be all over that issue for years. What's less clear is why Justice Thomas is obsessed with trying to prevent prison inmates from suing if they're beaten.
Guns have a constituency that prison beatings do not, at least publicly, and evidently not on the Supreme Court. [...] Justice Thomas has been trying and failing repeatedly to get someone to bring the court a vehicle for revisiting its prisoners’-rights jurisprudence. Dissenting from a 2002 decision, Hope v. Pelzer, he objected to reinstating a lawsuit brought by an Alabama inmate who had been handcuffed to a hitching post and left to stand shirtless in the sun for seven hours without water or bathroom breaks. “I remain open to overruling our dubious expansion of the Eighth Amendment in an appropriate case,” Justice Thomas wrote hopefully.
Sometimes, I think it's probably a good thing Justice Thomas doesn't talk during oral arguments because I feel like he's probably an extremely frightening person. It's pretty hard to justify repeatedly pushing for a case to overturn protections against prisoner beatings by guards. I have no idea what would motivate somebody to pursue something like this relentlessly for years.
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