"As for Thomas, he is physically transformed from his infamous confirmation hearings, in 1991-- a great deal grayer and heavier today, at the age of sixty-five," Toobin writes. "He also projects a different kind of silence than he did earlier in his tenure. In his first years on the court, Thomas would rock forward, whisper comments about the lawyers to his neighbors [Justice Stephen] Breyer and [Justice Anthony] Kennedy, and generally look like he was acknowledging where he was. These days, Thomas only reclines; his leather chair is pitched so that he can stare at the ceiling, which he does at length. He strokes his chin. His eyelids look heavy. Every schoolteacher knows this look. It's called 'not paying attention.' "
Toobin watches the court regularly, so it's worth considering what he says. (Although it seems unlikely that a conservative writer could conjure these Images of a leading liberal black public official without cries of "racist" being used to silence him.)
"This presumption of the intellectual inferiority of black people is part of the everyday American landscape," Juan Williams wrote in a Washington Post column memorializing the late Justice Thurgood Marshall, the first black man to hold a seat on the Supreme Court.
Toobin, unlike the Marshall critics that Juan Williams decried, makes clear that Thomas has a major influence on the court. But that only makes his column more bewildering.
"For better or worse, Thomas has made important contributions to the jurisprudence of the Supreme Court," Toobin acknowledges. "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. [Justice Antonin] 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."
Toobin wants to see more sparring on the court, as when Scalia blunted Breyer's line of questioning by pointing out that his liberal colleague was feeding the hapless lawyer "examples where we gave it a meaning that was different from what it said."
"The audience, worldly in such matters, laughed. Breyer, the proponent of the living, changing Constitution, and Scalia, the originalist, have been having this argument for years," Toobin writes, before calling for Thomas to participate in the theater. Toobin dismissed the one comment that Thomas has made in recent years as "a single stray wisecrack, [one] that hardly counts as participation."
I imagine that one of the nice things about being a Supreme Court justice is that, unlike college students or the schoolkids in whom Toobin earlier saw an analogy to Thomas, you don't have to scurry for participation points.
To return to the issue of Scalia's repartee with Breyer, and Thomas' role in it: "No one, however, has been more outspoken about this conflict, at least on paper, than Thomas, the most extreme originalist on the Court," Toobin writes, before managing to claim that oral arguments "are, in fact, the public’s only windows onto the justices’ thought processes."
Toobin understands Thomas' views of a host of issues, though, so the oral arguments would seem not to be the public's only window into the court's operations. To the extent that they do provide a glimpse, it's a grimy view (remember when everyone just knew that Chief Justice John Roberts would strike down the individual mandate?) So why does Toobin call Thomas a disgrace based on his participation -- or lack of participation -- in an event that doesn't determine the outcome of a case?
Toobin seems to believe that the justices have a duty to show off their intellectual acuity and legal knowledge during oral arguments (a very understandable desire for a legal correspondent like Toobin to have).
Thomas acts as if he and the public are better served if he allows the lawyers to talk when they are before the court, debates his fellow justices when they are in conference with each other and reveals his thought to the public only when he can show the totality of his argument in a written opinion.
Right or wrong, that's a pretty reasonable position.