Five Years Later, Justice Thomas Still Silent

U.S. Supreme Court Justice Clarence Thomas i i

U.S. Supreme Court Justice Clarence Thomas Alex Wong/Getty Images hide caption

itoggle caption Alex Wong/Getty Images
U.S. Supreme Court Justice Clarence Thomas

U.S. Supreme Court Justice Clarence Thomas

Alex Wong/Getty Images

Supreme Court Justice Clarence Thomas has passed a unique anniversary. As of Tuesday, it has been five years since he asked a question at the court's oral argument — a phenomenon unmatched in recent history.

For at least 40 years, there is no record of any justice completing a single term, much less five, without asking a question. Indeed, scholars have calculated that the other eight justices ask on average 133 questions per hourlong session. But Thomas remains silent.

On Tuesday, as always, he passed the argument session leaning back in his chair, sometimes closing his eyes, and occasionally making a side remark to the justice who sits next to him, Stephen Breyer. But while Breyer and the others are peppering the lawyers with questions, sometimes even interrupting each other, Thomas remains mum.

Even before his self-imposed silence, Thomas was only an occasional questioner at a time when questioning from the other justices increased markedly. During his first 15 years on the court — from 1991-2006 — he asked just 11 questions.

Gregarious in private and in speaking engagements before friendly audiences, Thomas has given varying explanations for his quietness on the court. He has said that he was long inhibited about public speaking because of the accent he had when a youngster, and more recently, he said that he views the oral argument as something of a circus, with the other justices vying for time and failing to give the lawyers adequate opportunities to make their case.

In a 2009 C-SPAN interview, Thomas said that perhaps the more vocal members of the court prefer the "interaction" of oral argument because "it helps them learn and process what they have been thinking on."

"We all learn differently," Thomas said. "I prefer to listen and think it through more quietly."

The scholarly blogosphere, however, has been buzzing in recent weeks about whether Thomas' silence matters, whether it compromises his influence, whether it is fair to lawyers who cannot address his unspoken concerns, or alternatively, whether it is just further evidence of his enigmatic persona.

Timothy Johnson, a political scientist at the University of Minnesota Law School who has studied oral argument, does think that Thomas has lost some influence. That's partly because, Johnson says, scholarly research shows that oral argument is the first place that the justices move toward their decision-making, in essence talking to each other through their questions.

"If the coalitions are starting to coalesce" during oral argument, Johnson says, "then, in that sense, it probably does matter to some degree."

But other scholars disagree, noting that it is impossible for outsiders to assess Thomas' influence behind closed doors at the court. Moreover, Supreme Court observers point out that Thomas, unlike other justices, is relatively uninterested in precedent.

Columbia Law School professor Jamal Greene contends that while other justices at oral argument are "trying to figure out how to fit" the case before them into a complex set of previous decisions, that task is frequently unimportant to Thomas.

University of California, Davis law professor Vikram Amar agrees.

"I think the fact that Justice Thomas seems to write so frequently for himself, alone, and the fact that he lays out positions that are far apart from those of the other justices," says Amar, "indicates that, at least at this point, he's not trying to" build any sort of consensus on the court for his positions.

Amar has one caveat. "For the public, it's sometimes good for each of the justices to show the world that they are engaged and that they really have the kind of keen, active legal mind that we look for in justices," he says.

Lawyer Erik Jaffe, a former Thomas clerk, calls all of this speculation on Thomas' silence nothing but "academic fairy-tale spinning."

Jaffe says he's appalled by "this unspoken and sometimes openly spoken subtext that [Thomas is] an idiot so of course he's not talking."

"It's so staggeringly offensive," Jaffe adds, "the notion that people, especially professors, can continue to say this after many, many opinions where I think he [Thomas] has more than adequately proven that he has the intellectual chops to run with the best of them."

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