Clarence Thomas Breaks 10 Years of Silence at Supreme Court


NY Times:

Clarence Thomas Breaks 10 Years of Silence at Supreme Court

WASHINGTON — Breaking a decade-long silence, Justice Clarence Thomas on Monday asked several questions from the Supreme Court bench. He spoke just weeks after the death of Justice Antonin Scalia, whose empty seat next to Justice Thomas’s remains draped in black.
It was hard to escape the conclusion that the absence of the voluble Justice Scalia, who had dominated Supreme Court arguments for nearly 30 years on the bench, somehow liberated Justice Thomas and allowed him to resume participating in the court’s most public activity.

Justice Thomas’s questions came in a minor case on domestic violence convictions and gun rights. He asked a series of questions about whether misdemeanor convictions can permanently suspend a constitutional right.
The questioning started as the morning’s first argument was winding down and Ilana H. Eisentein, a lawyer for the federal government, uttered a common concluding sentence. “If there are no further questions,” she said.

But there were some, including perhaps a dozen from Justice Thomas.
“Ms. Eisenstein, one question,” he started, according to a transcript released by the court. “This is a misdemeanor violation. It suspends a constitutional right. Can you give me another area where a misdemeanor violation suspends a constitutional right?”
After some back and forth, Ms. Eisenstein said she could not think of one, though she added that First Amendment rights could be affected in comparable settings.

“O.K.,” he said. “So can you think of a First Amendment suspension or a suspension of a First Amendment right that is permanent?”
Here again, Ms. Eisenstein offered a concession. “Your Honor,” she said, “it’s not necessarily permanent as to the individual, but it may be permanent as to a particular harm.”
The barrage of sharp, pointed questions continued, with Justice Thomas seeming to have the better of several of the exchanges.

I know Justice Thomas has been mocked for never asking questions but I suspect that Justice Scala probably asked most of the questions he would have since they had similar philosophies.

Also, I don’t think oral arguments really count as much as people think. The justices have to do a huge amount of reading on each case; briefs from each side plus amici briefs so they have probably made their minds made up at that point. You can probably lose at oral arguments but I doubt you win there.


Technically, he did sneeze in 2009, although to this day, he claims it was Kennedy.


I thought the same thing when I read the article. Now he has to ask the questions Scalia would have asked.


I always thought the vast majority of the work would be going through the written arguments provided by the people directly involved in the case and those who are friends of the court. I think the oral arguments is more for show than actually making a difference in deciding cases. I have no problem with Justice Thomas not saying much in the oral arguments because I assume he does the real work where it can’t be seen in the public.



That was funny. I don’t even follow SCOTUS (I’m Canadian), so I have no real context, but this struck me as hilarious.


I seem to remember some suggestion or discussion a couple of years ago to do away with the oral arguments as everything in them is generally already stated in the briefs (as has been mentioned).


Thomas spoke??? Man… maybe he IS uppity. :smiley:


Thank goodness someone is asking those questions.


It is certainly true that the majority of the work is done beforehand in the appeals process, written arguments, and friend of the court briefs. However, the justices (and their clerks) have minds of their own, and sometimes come up with novel approaches to questions, or new questions to test the limits of a legal theory or rule championed by counsel. The responses to these new thoughts may be silence from the files when the justices discuss and debate their decision behind closed doors - or in other cases the responses can only be inferred. But in oral arguments the ideas can be put directly to the parties. This may affect the decision only in a minority of cases, but I think it’s an important component that enriches the cases and the decisions.

It’s also worth noting that on the court, the silent treatment has only a solitary adherent. All the other justices seem to believe there is value in oral arguments, and participate accordingly. Another factor to consider, even if the oral arguments have no effect on the decision, is the educational value for the public. The court depends on public trust for its power. Once a ruling has been issued, the federal and state courts and governments, and for the most part the public, fall in line with that ruling. Without that widespread voluntary cooperation with the rule of law, the Supreme Court would lose considerable power as it could certainly not chase down every defiant judge and government official.

For that reason, it is valuable for the cases to get a more public airing. Whenever the court rules in a controversial way, the impact is softened by the fact that the result has already been hinted at in the oral arguments themselves and the questions the justices ask.


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