Justice Thomas To Hit Five-Year Anniversary Of Silence On Bench

Later this week, Clarence Thomas will have gone five years without asking a question during oral argument at the Supreme Court. Is that really a big deal?

The New York Times notes today that. later this week, Justice Clarence Thomas, will mark five years since he has spoken during oral argument in the Supreme Court:

WASHINGTON — The anniversary will probably be observed in silence.

A week from Tuesday, when the Supreme Court returns from its midwinter break and hears arguments in two criminal cases, it will have been five years since Justice Clarence Thomas has spoken during a court argument.

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

In the past 40 years, no other justice has gone an entire term, much less five, without speaking at least once during arguments, according to Timothy R. Johnson, a professor of political science at the University of Minnesota. Justice Thomas’s epic silence on the bench is just one part of his enigmatic and contradictory persona. He is guarded in public but gregarious in private. He avoids elite universities but speaks frequently to students at regional and religious schools. In those settings, he rarely dwells on legal topics but is happy to discuss a favorite movie, like “Saving Private Ryan.”

To a non-attorney, it sounds odd, or even that Thomas isn’t really doing his job, but he’s given several reasons for the way he approaches oral argument on the Court:

He has said, for instance, that he is self-conscious about the way he speaks. In his memoir, “My Grandfather’s Son,” he wrote that he had been teased about the dialect he grew up speaking in rural Georgia. He never asked questions in college or law school, he wrote, and he was intimidated by some fellow students.

Elsewhere, he has said that he is silent out of simple courtesy.

“If I invite you to argue your case, I should at least listen to you,” he told a bar association in Richmond, Va., in 2000.

Justice Thomas has also complained about the difficulty of getting a word in edgewise. The current court is a sort of verbal firing squad, with the justices peppering lawyers with questions almost as soon as they begin their presentations.

In the 20 years that ended in 2008, the justices asked an average of 133 questions per hourlong argument, up from about 100 in the 15 years before that.

“The post-Scalia court, from 1986 onward, has become a much more talkative bench,” Professor Johnson said. Justice Antonin Scalia alone accounted for almost a fifth of the questions in the last 20 years.

Justice Thomas has said he finds the atmosphere in the courtroom distressing. “We look like ‘Family Feud,’ ” he told the bar group.

At other times, Thomas has also said that by the time oral argument comes around the case has already been briefed and argued by both sides and, if it’s a high profile or important cases, there have probably been several amicus curiae briefs filed by outside parties wishing to bring a specific point in the case to the court’s attention. As Thomas said during a talk to law students two years ago, by the time oral argument comes around, the Justices have virtually all made up their minds on the issues in the case:

TUSCALOOSA, Ala. — Clarence Thomas, the justice long known as the silent member of the Supreme Court, criticized his colleagues Friday for badgering attorneys rather than letting them speak during oral arguments.

Thomas – who hasn’t asked a lawyer a question during arguments in nearly four years – said he and the other eight justices virtually always know where they stand on a case by reading legal briefs before oral arguments.

“So why do you beat up on people if you already know? I don’t know, because I don’t beat up on ’em. I refuse to participate. I don’t like it, so I don’t do it,” Thomas said during an appearance before law students at the University of Alabama.

Thomas didn’t name names, but fellow conservative Justice Antonin Scalia is generally considered the court’s most aggressive questioner during oral arguments. President Barack Obama’s lone nominee so far, Justice Sonia Sotomayor, isn’t afraid to ask questions either.

Thomas scoffed at the idea that the justices try to use questions to influence the opinions of fellow members of the court.

All nine of us are in the same building,” he said. “If we want to sway each other we know where we are. We don’t need oral arguments to do that. It doesn’t make any sense to me.”

Thomas has also made the argument that the current court practice of frequently interrupting attorneys with questions is different from the way the Court has operated historically, and there seems to be at least some support for his point.

As an attorney, I can see two sides to this. A judge who constantly interrupts you to ask questions can be frustrating because it throws you off the points you wanted to make, and may even prevent you from making all of the point you wanted to raise during the limited amount of time you have for oral argument. At the same time. a judge who asks no questions at all can be downright terrifying because it just gives the impression that they’ve already read your brief, made up their mind, and that there isn’t anything you can say to change their opinion. I honestly can’t say that one or the other is a better style of judging, and I’m not going to join those who say that Thomas’s silence is some kind of a flaw on his part. It’s just different.

FILED UNDER: Law and the Courts,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. wr says:

    Actually, it’s not his “five year anniversary” — it’s his FIFTH anniversary. Because, of course, the root of anniversary is annum, which, as you know, means year.

    Yes, I know that stupid people have been using this moronic and redundant phrase for some time now, but please join me in my battle against stupidity!

  2. matt b says:

    The additional possibility is the majority of questions Thomas wants to ask are being covered by other Justices. Still, five years without a single question seems odd and somewhat problematic — as any form of extreme behavior is problematic (one could equally argue that asking lots of questions every oral argument can be construed as an issue as well) — in this case because it does lead me to wonder why, other than ceremony, he bothers to attend arguments in person (rather than watching them later for example or reading the transcript).

    What it does go to show is that Thomas continues to be march to his own beat.

    And, of course, given his position within the court and the specifics around his appointment and confirmation, this fact (and each sides interpretation of it) will continue his “destined” tenure as the most politically controversial Justice on the courts. It’s difficult to see anyone unseating him during the remainder of his time there.

  3. ponce says:

    Two things we all try to do with our jobs:

    1. Increase the amount of money we get.
    2. Decrease the amount of work we have to do get it.

    If Thomas can do his government job by just sitting around like a coma patient…more power to him.

  4. michael reynolds says:

    wr:

    I will if you will pledge your support to helping me eliminate the incorrect use of myriad. There is not a myriad “of.” There are simply myriad.

    I’m pretty sure civilization itself hangs in the balance.

    As for Thomas, why would he ask questions? Like there’s some doubt whether he’ll support big business and the GOP?

  5. wr says:

    I’m with you, Michael. We’ll be like those Egyptian protestors, and the world will rally to our side…

  6. jwest says:

    Doug Mataconis: Blacks Too Stupid to Serve on Supreme Court

    Outside the Beltway feature article writer Doug Mataconis reported today that Supreme Court Justice Clarence Thomas, an African American appointed to the court by George Bush, was far too stupid to serve because he has never asked a question during oral arguments.

    (this is a variant on the meme that’s going around)

  7. anjin-san says:

    > Doug Mataconis: Blacks Too Stupid to Serve on Supreme Court

    Let’s try a version with a pro-reality bias:

    Doug Mataconis: Stupid people Too Stupid to Serve on Supreme Court

  8. Modulo Myself says:

    Thomas isn’t stupid. He’s quite the opposite, in fact. He just happens to be an extremely weird and resentful individual who should never gone into the judiciary.

  9. James H says:

    Hm.

    Justice Thomas’s silence disturbs me a little bit; it makes me wonder whether he’s paying attention either to his colleagues on the court or to the advocates in front of him.

  10. george says:

    I never got the idea that Thomas was stupid – in fact I doubt many stupid people get anywhere close to where he is, at least by any normal definition of stupid.

    But it does sound odd that he hasn’t asked any questions in that time period, at least to a non-lawyer like myself.

  11. Maggie Mama says:

    If you’ve read the arguments yourself, and not left them to your law clerks, perhaps you are intelligent enough to form an opinion without the need of further albeit benign hyperbole.

  12. Brummagem Joe says:

    Its different alright Doug. But we can count on you to rationalise it away. Even my son whose a fairly conservative lawyer, Federalist etc, regards Thomas as an embarrassment. He’s certainly not stupid, but he should never have been put on the supreme court.

  13. @BJ:

    In the sense of trying to mend fences regarding other threads, let me say that I have, over the years, increasingly wondered as to whether Thomas ought to have been named to the court. And certainly the silence presents the appearance, at least, of lack of inquisitiveness. It seems odd one could be a Justice of the Supreme Court and go half a decade without asking a question from the bench.

  14. […] Justice Thomas To Hit Five-Year Anniversary Of Silence On Bench (outsidethebeltway.com) […]

  15. Franklin says:

    Even if the oral argument is just going to regurgitate the briefs, don’t the briefs themselves generate any openings? It’s hard to believe that they are so perfectly written that there is no question about the argument.

  16. missy says:

    More of concern tome, besides this odd behavior, is his wife’s behavior and their closeness to the Right wing Tea party. He is judge who should be considered for removal. It is not a good association to have when we expect a fair and impartial hearing of our nation’s most important issues.

  17. Drew says:

    “At other times, Thomas has also said that by the time oral argument comes around the case has already been briefed and argued by both sides and, if it’s a high profile or important cases, there have probably been several amicus curiae briefs filed by outside parties wishing to bring a specific point in the case to the court’s attention. As Thomas said during a talk to law students two years ago, by the time oral argument comes around, the Justices have virtually all made up their minds on the issues in the case:”

    Setting aside the usual myriad inane comments on this fifth anniversary….

    Doug, and other lawyers, would know better than I, but the parenthetical above is exactly the point made by the tour guide when we visited the Supreme Court. In fact, this person went further, noting that the questioning wasn’t at all aimed at the lawyers arguing the case, but designed to indirectly make points to the other justices.

    But I suppose on this five year anniversary there are a myriad of views on the subject…….

  18. […] will be 5 years to the day since the last time Justice Clarence Thomas spoke during oral arguments. Doug offers some thoughts. posted in: Main Comments […]

  19. Steven Plunk says:

    I just wish more lawyers would follow his example.

  20. missy says:

    Right, he is not stupid , cause he figured out how to get appointed, but he should not be there. No matter what I think ,re: his ability to do a good job, it has nothing to do with his color and that should not be in the mix of this discussion.

    Today there are too many that might qualify as “stupid” , unable to do a certain job with the insight and abilities needed for that job, and they are running for office or in one.

    Maybe testing for their apptitude , knowledge of history, and posting it would be in order. Most of us take some sort of testing to gain a position or achieve a level .