Did Justice Thomas Take Personal Leave During the Healthcare Arguments?

The Supreme Court just heard six hours of argument on the Affordable Care Act. The cases are widely heralded as raising some of the most important issues brought to the court -- at least since Bush v. Gore, and now we know in its electoral aftermath, since Citizens United v. FEC.

Those opposed to the individual mandate assert that the issue before the court goes to very fundamental questions about the relationship between the government and its citizens. Two full hours of argument concerned arcane and complex issues about a 19th century law (the Anti Injunction Act). Entirely novel questions about the impacts of the litigation on Medicaid, health insurers, children and other recently covered Americans at risk for being stripped of their existing coverage tied the justices in intellectual knots during the last of the three days of argument.

Each day C-SPAN and other media have released audio recordings of the arguments during which the justices grilled the attorneys, argued among themselves, and grappled with very challenging issues. The court appears quite evenly divided.

When the third day of arguments concluded, C-SPAN televised the lawyers' comments on the steps of the Court. Paul Clement, the lawyer arguing against the Act's constitutionality, complimented the Court by observing how "engaged" all the justices were in the argument. (Undoubtedly, he hoped at least five would note the flattering comments and return the gesture the last week in June.)

After Clement's comments ended, C-SPAN opened a phone line for viewers to call with questions. The first caller had one interesting question. Having heard the give and take by the justices and Mr. Clement's comment about their engagement, the caller innocently (and without any detectible sarcasm) asked, "Was Justice Thomas present during the arguments?"

The caller sounded as if he may share some of Justice Thomas' background: African American, old enough to be able to watch C-SPAN at 10 a.m., and he was simply identified as a caller from Florida, a state adjacent to Justice Thomas's home state of Georgia. The C-SPAN moderator dutifully tried to explain that non-participation in oral arguments is just the way Clarence Thomas rolls.

It was a very sensible question that non-lawyers (who are unfamiliar with Justice Thomas's potted plant performances at oral arguments) might ask. It could have been grounded in another sensible question: How can a sentient judge, responsible for casting a deciding vote in a 5-4 case -- that is widely said to be the most important of the decade and is so complex that eight other justices are struggling to answer the questions posed -- sit through the proceedings mute for six hours? How could he be so untroubled or unmoved, while his eight colleagues (with the same responsibilities and hundreds of hours of past and future work invested in the case) are so "engaged" as Clement had cooed?

Not one question occurred to Justice Thomas that might have benefited from some dialogue? Not one assumption needed to be challenged? The other justices noted complexity, doubt and their own need for guidance. Justice Thomas has none of those feelings?

Detached for Four Decades

When questioned at his infamous confirmation hearing about any views he had about the constitutionality of abortion, Justice Thomas declaimed that he never participated in any discussions concerning that constitutional law question during the years he attended Yale Law School. When I heard that answer (recalling time I spent at that school a few years before Thomas did), I thought his answer was false, possibly perjurious, and thoroughly improbable.

Now, having just witnessed (figuratively speaking, as there are no cameras that permit that action literally) Justice Thomas sit through hours of debate on important constitutional issues while -- unlike when he was a student -- being paid to listen and participate, I have been forced to reconsider my conclusion about his non-participation claim at his confirmation hearing.

That he never spoke about any issue in law school related to the constitution and affairs of the day is a distinct, albeit sad, possibility.

Monitoring Workplace Attendance and Performance?

The Florida caller to C-SPAN might have stated his puzzlement in more common workplace terms. "Did Justice Thomas call in sick or take personal leave during the three days so that he simply wasn't present to help with the job his employer had scheduled?" Had the C-SPAN moderator answered that question affirmatively, it would have made more commonsense than the answer the moderator gave.

The puzzled Florida viewer provided support (of a less lofty and more mundane kind than that often argued) in support of televising oral arguments: the viewing public can at least be reassured that the justices paid with government salaries (and employer funded health plans) are actually showing up for work. The Florida caller would have not had to ask.

Of course, in another way it could have been possible to have Justice Thomas's libertarian views sharpen and improve the dialogue between the court and counsel (and between the justices themselves). Had he used sick or vacation days, Justice Thomas could have asked his wife, Virginia, to cover him at work those days.

Extensive media reports have documented that Mrs. Thomas has very strong views about the issues at hand (having worked for six figure remuneration) on behalf of Tea Party groups opposed to the health care legislation. She is an attorney. Justice Thomas could have asked her in to sit in his stead -- as a temp -- while he recuperated or enjoyed three days at home watching NASCAR races rerun on ESPN.

I suppose we have to just assume that someone in the audience in the courtroom would have noted his absence. And some day an intrepid legal reporter will reassure the public on this question of Justice Thomas's work attendance.

I doubt justices of the Supreme Court are required to submit time cards or punch a clock. But there are probably parking garage controls that might provide circumstantial evidence of his presence at the court over those three days. Of course, I am not too sanguine about whether the Court will rule favorably on a Freedom of Information Act request for those documents.