If he keeps it up, next week Tuesday will make exactly five years since Supreme Court Justice Clarence Thomas participated in oral arguments.  The long silence has led some to criticize Thomas for his lack of participation in the trials that have come before the court in recent years.

Today, on the New York Times ‘Room for Debate’ section, Timothy R. Johnson, Morse Alumni Distinguished Teaching Professor of Political Science at the University of Minnesota, argued that Thomas’ participation was meant to contribute to the overall discourse of the court and that his silence may indeed have the opposite effect.  He writes:

“…oral argument often functions as an opportunity for justices to communicate their thoughts and questions to each other, as much as to the lawyers in the courtroom. These conversations among the justices are important because they help form coalitions that determine how cases are decided.”

Thomas’ voice could be a worthy contributor on many of the cases due to come before the court this year, notably the legal challenge to the Obama administration’s Patient Protection and Affordable Care Act.  On this issue, House Democrats are hoping the Justice stays quiet.  Led by New York’s Congressman Anthony Weiner, House Dems are petitioning the Justice to recuse himself from the hearings, claiming his wife has gained money lobbying against the healthcare reform bill.

There’s a balance between thoughtful restraint and absence from the debate, and with the anniversary of five years of silence coming up, some analysts think this is all part of Thomas’ strategy to choose the former.  One such voice is Damon W. Root, who argued in Reason this week that, “while Thomas’ silence on the bench may be regrettable, there’s no question he’s taking a very active part in the justices’ internal debates—and that, after all, is where the Court’s decisions are ultimately made.”

With the recent additions of the eloquent Justices Sonia Sotomayor and Justice Elena Kagan, Cheif justice Robert has spent more time now directing debates than at any point in his tenure.  For this reason, Salon’s Dalia Lithwick wrote that, “Thomas isn’t wrong to suggest that the last thing the bench needs is another chatterbox.”

Justice Thomas’ chatterbox days may seem in the distant past now, but we could all do some good remembering those days where some of us really wished our robed friend on the bench would just keep his mouth shut.  Maybe we should be reveling in the Justice’s silence after all.

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