Originally written: June 13, 2011
Today on NPR’s Morning Report, Nina Totenberg discussed recently released transcripts of detailed interviews made over the last few years with eight Supreme Court justices. We learned that Justice Kennedy loves Hemingway; Justice Breyer loves Proust; Justice Goldberg was heavily influenced in her writing by Nabokov, under whom she studied; and Justice Thomas? He loves buses and trucks—words, not so much (in distinction from Scalia, who is a scold on the proper use and nuances of words.)
We learned that Scalia, when an attorney, loved being questioned by the judges while Thomas felt best when presenting arguments at the appellate level if he could get through his presentation without interruption. This is why Thomas has not asked one question during oral argument in over five years.
We learned that Justice Thomas grew up speaking a Negro American dialect and was not completely comfortable with English until his twenties.
We learned that Justice Kennedy loves to write the first drafts of his written arguments and then hand it off to his clerks while Justice Scalia likes to get a first draft from his clerks and then re-work it. Justice Thomas? We’re told he likes to have his clerks go through at least 3 heavily worked drafts before he begins to labor…
The implication is that Justice Thomas is a not well-read man who lets his subordinates do most of his work and can’t be bothered to engage in intellectual argument during open court, perhaps because he doesn’t want to be embarrassed by his more learned colleagues.
But of course Totenberg culled this information from scores of hours of interviews, so this 4 minute distillation tells us perhaps more about Nina Totenberg than about Thomas or other Justices. For example, what does it mean that Thomas was not comfortable in English until his twenties? By this time Thomas had already graduated from college and gotten into Yale school of law. Therefore the claim likely tells us more about the high level of rigor Thomas needs for comfort than it does about his ability to communicate well in English.
What about Thomas’s love of transportation vehicles rather than books? But of course Totenberg didn’t report what Thomas indicated his favorite books were, merely that, in contradistinction to Scalia, he was not overly enamored with words. This says nothing about his ability to command words. Neutrally, it merely suggests Thomas, who is obviously well-read, is more well-rounded than Scalia.
What about the implication that Thomas allows his clerks to do his work? Three drafts before he begins? But of course it is Thomas himself that sets the theme and conclusion of the argument, edits the drafts, and tells his clerks what changes are needed, where to look for material, what to research. Thomas’s decisions over the years speak in a distinctive and cohesive tone despite the fact his clerks change yearly. Perhaps Thomas merely takes his role as educator of his clerks more seriously than do his fellow Justices. I’m told he is beloved by his clerks, who typically go on to do very well in their chosen areas of law.
As to his non-participation in oral argument, Thomas has stated clearly many times in the past that it is his belief that in the vast number of cases the Justices have already made up their minds based on the written arguments already received and reviewed by the time oral argument begins. He views oral argument as largely a side show for the public and he doesn’t want to contribute to “gotcha” moments so beloved by Justice Scalia and others. It would seem this is a matter of personal preference, though Thomas’ contention that most Justices have already made up their minds before oral argument is, if true, something a court-covering journalist like Totenberg knows to be true, and she’s never gone on record as disagreeing.
Justice Thomas could have been portrayed as the Justice that has risen farthest from humble beginnings, learning English as a second language, more well-rounded than his stuffy and perhaps overly-intellectual colleagues (Proust? Really??). Justice Thomas could have been portrayed as the Justice that takes his role in educating legal clerks most seriously. But because Nina Totenberg strongly disagrees with Clarence Thomas’s ideology, he is instead made out—incidentally, casually, as an aside in a piece that was even not directly about him—as an unintellectual, lazy, non-participating buffoon, the only one on the Court. The white liberal lynching of Clarence Thomas that began at his confirmation hearings continues to this day.