Uproar as silent judge's objectivity questioned

As Justice Clarence Thomas approaches the 20th anniversary in October of his ascent to the United States Supreme Court after fending off the famous sexual harassment charges from Anita Hill, he finds himself under fire for a different milestone.

It might serve Thomas well to break into song or perhaps a one-man poetry jam when the court resumes its winter session to ponder new intractable cases and deliver weighty verdicts next Wednesday. That's because it will also be the fifth anniversary of his silence during oral arguments.

Each year that passes with Thomas still keeping his counsel while his colleagues routinely interrupt anxious lawyers with questions and demands for clarification, brings fresh media comment. Now the New York Times has given the puzzle of his monkish restraint front-page treatment.

"If he is true to form," the Times' reporter writes, "Justice Thomas will spend the arguments as he always does: leaning back in his chair, staring at the ceiling, rubbing his eyes, whispering to [his colleague] Justice Stephen G. Breyer, consulting papers and looking a little irritated and a little bored. He will ask no questions."

For Thomas, the questions about his non-loquacious style on the bench - he is said to be chatty in private - may be a minor irritation. He has answered them in various ways in the past. One explanation is that he grew up speaking Geechee, an obscure patois of the coastline of Georgia, and still finds public speaking intimidating. The other is that the eight other justices talk far too much as it is.

The anniversary comes just as another tempest is breaking around him concerning his wife, Virginia Thomas.

Revelations of her ties to groups committed to undoing the recently passed healthcare reform laws come just as a case on the constitutionality of those reforms are heading towards the court and her husband.

"My colleagues should shut up," Thomas once said; it may have been a joke, of course. Quizzed on the topic on another occasion, he said: "I would like to ... be referred to as the 'listening justice'. I still believe that, if somebody else is talking, somebody should be listening."

The contrast with his colleagues is certainly stark. Records show that over a 20-year period ending in 2003, the justices together averaged no fewer than 133 questions an hour while lawyers made their pitches. Among the most probing is Antonin Scalia.

The questions are pored over by court observers and lawyers for clues as to which way each justice might be bending on a case. Thomas' silence does not render the court especially opaque, however, because he is conservative in legal and political instincts.

It is the conservatism of his lobbyist wife, however, that is giving some liberals pause.

Thomas drew criticism for only belatedly revealing in his income disclosure statements that she had earned US$700,000 from the Heritage Foundation, which is committed to killing the healthcare reforms.

Last week, 74 Democratic congressmen wrote a letter asking Thomas to recuse himself if the court is asked to rule on whether the so-called Obamacare reforms violate the constitution and should be repealed.

THE WEIRD WORLD OF JUSTICES

* Justice William Cushing was the only judge to wear a white wig to the Supreme Court, at its first session in 1790. President-to-be Thomas Jefferson told him to discard the wig, saying it made "English judges look like rats peeping through bunches of oakum".

* Chief Justice William Howard Taft is the only person to have held the post of President and Chief Justice of the US. In his latter role, he also became the only former President to have sworn-in subsequent Presidents.

* Chief Justice Salmon P. Chase is the only justice to appear on American currency. He served between 1864 and 1873 and was on the now obsolete US$10,000 bill.

* Justice Anthony Kennedy this month presided over a mock trial in the Supreme Court of Shakespeare's protagonist Hamlet, to determine if he was sane when he stabbed Polonius.

- INDEPENDENT