February 14, 2011
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Supreme Court Justice Clarence Thomas peppered an attorney with a question during oral arguments on a South Carolina death penalty case. The questioning of an attorney by a Supreme Court Justice would normally not make news but ThomasÂ’s question did, not because it was penetrating, involved a complex point of law, elicited important data, or because he asked it out of just plain curiosity, but
because he even asked it at all. It was a rarity. He asked it five years ago, and hasnÂ’t asked another question since then.
His well-documented silence on the court for the past five years has been the butt of jokes, ridicule, and just plain wonderment. How could a high court justice sit Sphinx like while his colleagues routinely rage and bombard attorneys with every conceivable question during oral arguments? In the two decades up to 2008, justices asked on average 133 questions. ThomasÂ’s ultra-conservative ideological court soul mate Antonin Scalia is the most verbose. HeÂ’s peppered, badgered and hectored attorneys with more than a one-fifth of the questions asked from the high bench. All the while Thomas has sat silent, inscrutable, distant and even appeared bored.
Thomas has given several different reasons why heÂ’s kept his mouth shut. He claims that he does not see any need to speak up or out since it doesnÂ’t really serve to help him understand, clarify or amplify on a legal point in a case.
This is ludicrous. Studies have shown that oral arguments are not just an exercise in verbal theater that serve no real purpose in helping judges make up their minds about cases. They are vital to gathering information, raising and clarifying crucial legal and policy issues and they help build consensus among the justices about opinions they will have to render in a case."
