WASHINGTON – Justice Clarence Thomas, who has already gone a decade without questioning from the Supreme Court bench, is close to completing a term in which he actively participated in every argument.
Judge Thomas’ shift from monastic silence to gregarious engagement is a byproduct of the pandemic, during which the court heard arguments over the phone. Judges now ask questions one at a time, in order of seniority.
Judge Thomas, who joined the court in 1991, comes in second, just behind Chief Justice John G. Roberts Jr., asking probing questions in his distinctive baritone.
“This has been a lemonade out of lemons situation,” said Helgi C. Walker, an attorney at Gibson, Dunn & Crutcher who served as a forensic clerk. “I’m just so happy that more people are hearing from Judge Thomas whom we all know.
“He can be one of the most talkative people you’ve ever met,” she says. “He is extremely talkative.”
In telephone arguments, he asked tough questions from both sides and almost always used the few minutes allotted to him. The idiosyncratic legal opinions that characterize his frequent concurring and dissenting opinions were largely absent from his questioning, which was measured and straightforward.
If Judge Thomas’ questions differed from those of his colleagues, it was in their courtesy. He hardly ever interrupted the lawyers, although he asked specific follow-up questions if he had time.
Some of his most memorable comments were colored sides.
In the last term, Judge Thomas reflected on rising salaries for college football coaches, said the alleged ‘chase’ of a police officer had struck him as a ‘winding chase’, the ‘roots commented. sordid “of an enacted Louisiana law. to advance white supremacy and wondered how public schools should respond to student feedback “on current controversies, like the protests or Black Lives Matter, antifa or Proud Boys.”
When a lawyer mistakenly called him “Mr. Chief Justice, “he replied in a light and joking tone,” Thank you for the promotion. “
Lawyers who appear in court frequently said they welcomed Judge Thomas’ participation.
“He is an excellent questioner and an important voice in court,” said Gregory G. Garre, a lawyer with Latham & Watkins who served as Solicitor General under President George W. Bush.
“His questions are clear, fair and focused on resolving the heart of the dispute in court, not tangential issues,” Garre said. “Often his questions have a practical element, testing the real ramifications of a party’s position. He does not try to set traps or debate academic issues. “
Mr Garre said that Judge Thomas’ questions in the court’s first telephone dispute about whether Booking.com could register his name refocused the court with a clever analogy. Justice asked how an Internet domain name differs from a 1-800 phone number, noting that 1-800-PLUMBING is a registered trademark.
Justices Ruth Bader Ginsburg and Stephen G. Breyer continued the point, and Booking.com prevailed, in Judge Ginsburg’s latest majority opinion.
Justice Thomas explained his silence in the courtroom as a mere courtesy motivated by an aversion to the free barrage of questions from the bench that characterizes modern Supreme Court arguments.
“I think you don’t have to ask so many questions to decide cases, and I don’t think that’s helpful,” he told Harvard Law School in 2013. “I think that we should listen to the lawyers pleading their case, and I think we have to allow the lawyers to plead. “
“We look like ‘Family Feud,'” Justice Thomas told a bar in 2000.
Over the years, he has given other explanations for keeping his mouth shut.
In his 2007 memoir, “My Grandfather’s Son,” he wrote that he had never asked questions in college or law school and was intimidated by some of his comrades.
He also said he was aware of the way he spoke, in part because he was teased by the dialect he grew up in in rural Georgia.
Whatever its basis, its ten-year drought set a modern record. It has been at least 50 years since any other member of the Court served a single term without asking a question.
When he spoke from the bench, the effect could be electrifying. In 2002, for example, the courtroom was enthralled when he shared his thoughts on the meaning of a Virginia law banning the burning of crosses, recalling “nearly 100 years of lynching” in the South by the Ku Klux Klan and other groups.
“It was a reign of terror, and the cross was a symbol of this reign of terror,” he said, adding, “It was intended to sow fear and terrorize a population.”
The court’s final argument for the term is set for Tuesday. It will take place by telephone and Judge Thomas will undoubtedly participate.
The judges hope to return to the courtroom when the new term begins in October. Once back on the bench, will Judge Thomas return to his usual taciturnity?
“I hope not,” Garre said. “He has contributed significantly to the pleadings over the past year, and it would be a real loss to the court, the lawyers and the public if he kept silent. But it’s also fair to say that Judge Thomas may well prefer the orderly questioning of the current format as opposed to the binge eating that can dominate when the judges are together on the bench.
Irv Gornstein, the executive director of the Georgetown Supreme Court Institute, said that “there is one and only way he does not get back to form – if they continue to question justice by justice.”
“And the chances of that happening,” he said, “are approximately zero.”