I am truly puzzled by Jeffrey Toobin’s blog post in the New Yorker, which goes after Justice Thomas for his silence at oral argument.
Michael McGough makes most of the salient points rebutting Toobin. But I will just add this: Justices should be judged primarily by their opinions. This is the place in which the Justices’ views are translated into legal binding pronouncements, or into well thought-out arguments that the Court has headed off in the wrong direction.
Judging Justice Thomas primarily by his opinions, there is no good argument that Justice Thomas is a “disgrace.” Quite the opposite. As Toobin acknowledges, “For better or worse, Thomas has made important contributions to the jurisprudence of the Supreme Court. He has imported once outré conservative ideas, about such issues as gun rights under the Second Amendment and deregulation of political campaigns, into the mainstream. Scalia wrote District of Columbia v. Heller, which restricted gun control, and Kennedy wrote Citizens United v. Federal Election Commission, which undermined decades of campaign-finance law, but Thomas was an intellectual godfather of both decisions.”
Indeed, I have written an extensive analysis of Justice Thomas’s leadership in conservative thinking in the campaign finance area. There is virtually nothing Justice Thomas and I agree upon in this area. But his ideas are respectable, and the intellectual heft in his opinions formidable.
Even if we were going to focus on oral arguments (which we should not), how is Justice Thomas any more “disgraceful” at oral argument than Justice Ginsburg napping or Justice Scalia deriding a litigant for reading his opening at oral argument?