Thomas is perhaps the most consistently conservative justice on the court - and is famously silent during oral arguments. He asks no questions, though his opinions tend to be very forceful. This has led some to wonder about his though process. Including this author. For 2305's look at the judiciary.
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For his own part, Thomas doesn't seem to feel that there's any reason to speak up. "Maybe it's the Southerner in me," he has mused. "Maybe it's the introvert in me, I don't know. I think that when somebody's talking, somebody ought to listen." But while I am not sure I would label his silence a “disgrace,” as Toobin did, it is a lost opportunity for all of us. Thomas is a complex figure. I think his legal ideas profoundly wrong. Over the years he has expressed deep resentment over the battle over his confirmation—resentment that his admirers may find understandable but that to me seems excessive. (“Whoop-de-damn-do,” Thomas reports himself as saying when confirmed. But winning a Supreme Court Justiceship, even in ugly circumstances, is an honor. A slight show of gratitude might have been becoming.)
Like every justice, Thomas has a number of areas where he can offer special understanding. He's the only justice who has studied for the priesthood and the only one who has worked in state government. Most relevant to the clean air case, he's the only one who has served as head of an important executive agency (in his case, the Equal Employment Opportunity Commission). I am not sure I would label his silence a “disgrace,” but it is a lost opportunity for all of us.
And when he has spoken out, the results have on occasion been extraordinary. Consider the 2003 case of Virginia v. Black. Several convicted defendants challenged a Virginia statute that made it a felony to burn a cross where others could see it “with the intent of intimidating any person or group.” Not long before, in R.A.V. v. City of St. Paul, the Court had struck down a city ordinance making it a crime to use any symbol in public with the knowledge that it “arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.” Even though the Virginia law was narrower, many observers were confident the majority would also strike the Virginia law as an invalid ban on “symbolic expression.”
Thomas, the only African American on the court, was born into poverty in a segregated community, and he knows a few things that most of his gently raised colleagues do not. He calmly interrupted: “[A]ren't you understating the—the effects of—of the burning cross? . . . Now, it's my understanding that we had almost 100 years of lynching and activity in the South. The Knights of Camellia and—and the Ku Klux Klan, and this was a reign of terror and the cross was a symbol of that reign of terror. Was—isn't that significantly greater than intimidation or a threat?”
