Justice Thomas speaks

I saw this story today [1], and I've got to say I absolutely love it. Here is the tag line:

“Clarence Thomas Just Asked His First Question in a Supreme Court Argument in 3 Years”

For those like me not familiar with Justice Thomas, he is one of the nine Supreme Court Justices and he is famously terse:

“He once went 10 years without speaking up at an argument.”
“His last questions came on Feb. 29, 2016”

You could say I was speechless upon reading this (see what I did there?), for a judge who sits over some of the most important trials in the US to basically never speak during oral arguments seems pretty incredible.

​But then on reflection, in his defence (okay I'll stop now):

• There are nine justices, so if each one interrupts every few minutes, that’s a hell of a lot of interruption.
• By the time a case makes it to the Supreme Court, the facts of the matter have usually been established, and the discussion is largely focused on the correct interpretation of the law. Even the main arguments as to the correct way to interpret the law would have probably been stated and restated endlessly as the case has made its way through the lower courts.
• Thomas has stated that he considers most questions unnecessary and the interruptions discourteous.

Which does actually sound pretty reasonable when you think about it, still I found it pretty amusing to read this morning, can you imagine turning up to your job and then not speaking for years at a time? Obviously your boss would have something to say about that, but then what if you didn’t have a boss, and didn’t have any clients per se, and what if you thought you could do your job (acting as a judge in court cases) just as well or if not better by not speaking, maybe the rest of the justices should take a leaf out of Thomas’s book?

Grounding your beliefs

Since I’m on the topic of Supreme Court justices, one thing about them I find fascinating, is their job is essentially to just act as the embodiment of a set of principles for how the constitution should be interpreted. Because the rule of law relies on consistency of decision making, Justices by and large stick to their principles for their entire career (and I'm sure they each sincerely believe in what they are advocating for) And because the law touches on basically every nook and cranny of human society, these principles end up having to be so broad and fundamental, that for a justice, selecting them in the first place is tantamount to having to take a position on entire schools of philosophy.

Thomas, according to  the following Regent University Law Review article linked below [2], has been described as a Textualist and an advocate of natural law jurisprudence. i.e. a proponent of the philosophical tradition of natural rights, which can be traced back to the writing of Aristotle, survived through the middle ages in the works of Thomas Aquinas, and then came to prominence again post-enlightenment, with thinkers such as Hobbes and John Locke.

Is this the only position one could take? Not at all, for example, take the following extract from an introductory law book I read last year (Understanding Law by John N. Adams and Roger Brownsword):

“Broadly speaking, our position is underpinned by a synthesis of Immanuel Kant’s rationalist philosophy and Max Webber’s sociological method. This yields inter alia a concern that reason should be pressed to its limit, that individual rights should be taken seriously, that explanation should start with the reasons and purposes of individual actors, and that it makes sense to think that law can be “correctly” understood. If readers, having considered the matters have reason to believe otherwise, then so be it”

Ultimately that is exactly the type of statement that you need to be able to make if you are a Supreme Court Justice like Thomas, or Law Professors like Adams and Brownsword. If we think of what a judge does as something akin to meta-law, that is to say, deciding between different legal arguments, then judges need a framework which is not grounded in law in order to make decisions about the correct interpretation of the law. And what’s is left if we can’t reference legal theories when talking about legal theories? Well basically philosophy or religion. To put it another way, if someone were to repeatedly ask a judge ‘yes but why do you believe that’, the judge’s argument needs to bottom out somewhere, and it can’t simply be circular or end up with the statement ‘because’s that’s just how it is’

For Clarence Thomas, his position would bottom out with reference to the philosophical tradition of natural rights. The authors above present a solution which is derived from a pretty different genealogy, if you kept pestering them they would ultimately tell you to go read Kant’s Critique of Pure Reason and if you disagree with Kant’s arguments then go take it up with a Kant scholar. Where it gets interesting is that these two schools of philosophy, German Rationalism for the authors of the book, and some combination of Aristotelianism combined with British Empricism, are fundamentally different doctrines that often take irreconcilable positions. Given these types of questions have been debated pretty continuously for at least two thousand years of written history, I think we can safely conclude that they differences are not going to be removed any time soon.

I’m just glad then when I login in the morning, I don’t need to have a full philosophical framework figured out in order to do my job as an actuary. I largely just apply statistics and critical thinking and if something works I run with it, and if a method or approach doesn’t work I stop using it. I don’t have to worry about the ontology of the objects I’m using, or anything like that…. Oh wait, haven’t I just put forward a basically pragmatist and sceptical empiricist approach? Aren’t these positions extremely difficult to ground without spiralling into relativist and into a self-referential swamp? Luckily for me, I don't get asked, otherwise unlike Justice Thomas I'd probably eventually have to resort to 'because that's just how it is'
 
[1] Link to a Time article (original article was in the economist, but is paywalled):
https://time.com/5555125/clarence-thomas-first-question-years/
[2] Regent University Law Review article on the confirmation hearing of Justice Thomas
www.regent.edu/acad/schlaw/student_life/studentorgs/lawreview/docs/issues/v12n2/12RegentULRev471.pdf