MICHELE NORRIS, host:
A unique anniversary today for Supreme Court Justice Clarence Thomas. It's been five years since he asked a question at the court's oral argument, a phenomenon unmatched in recent history.
NPR legal affairs correspondent Nina Totenberg has the story.
NINA TOTENBERG: For at least 40 years, there's no record of any justice completing a single term, much less five, without asking a question. Indeed, scholars have calculated that today, the other eight justices ask on average 133 questions per hour-long session. But Thomas remains silent. Today, as always, he passed the argument session leaning back in his chair, sometimes closing his eyes, 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, even sometimes 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.
Gregarious in private and in speaking engagements before friendly audiences, he's given varying explanations for his quietness on the court; that he long was inhibited about public speaking because of the accent he had as 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.
Here he is talking about it in a 2009 C-Span interview.
Justice CLARENCE THOMAS (Supreme Court): 'Cause I think there are far too many questions. But that's - we all learn differently. So some members of the court like that interaction. It helps them learn and process what they have been thinking of. I prefer to listen and think it through more quietly - but each to his own.
TOTENBERG: The scholarly blogosphere, however, has been buzzing in recent weeks about whether Thomas' silence matters; whether it compromises his influence; whether it's fair to lawyers, who cannot know what his concerns are; or alternatively, whether it's just further evidence of his enigmatic persona.
Timothy Johnson, a political scientist at the University of Minnesota who's studied oral argument, does think that Thomas has lost some influence. That's in part because Johnson says scholarly research shows oral argument is the first place that the justices move towards their decision-making - in essence, talking to each other through their questions.
Mr. TIMOTHY JOHNSON (Political Scientist, University of Minnesota): If the coalitions are starting to coalesce, if you will, during oral argument, then in that sense it probably does matter, to some degree - especially given that Justice Thomas often makes quite unique arguments in the opinions that he writes.
TOTENBERG: But other scholars disagree, noting that it's impossible for outsiders to assess Thomas' influence behind closed doors.
Moreover, Supreme Court observers point out that Thomas, unlike other justices, is relatively uninterested in precedent. Columbia law professor Jamal Green contends that while other justices at oral argument are trying to figure out how to fit this case before them into a complex set of previous decisions, that task is frequently unimportant to Thomas.
University of California law professor Vikram Amar agrees.
Prof. VIKRAM AMAR (Law Professor, University of California): 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, does indicate that at least at this point, he's not trying to tip the balance on the court and build groups of two, three, four or five to resolve cases.
TOTENBERG: But Amar has this caveat.
Prof. AMAR: I do, however, think that 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.
TOTENBERG: Lawyer Erik Jaffe, a former Thomas clerk, calls all this academic fairytale spinning.
Mr. ERIK JAFFE (Attorney): The unspoken - and sometimes openly spoken subtext that he's an idiot, so of course he's not talking, it's just - it's preposterous. It's so staggeringly offensive. I mean, it was the notion that people, especially professors, can continue to say this after many, many opinions where I think he has more than adequately proven that he has the intellectual chops to run with the best of them.
Nina Totenberg, NPR News, Washington
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