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Tuesday, May 4, 2021

Justice Thomas Speaks Up

For John, BLUFAssociate Justice Clarence Thomas is famous for not asking questions during oral arguments.  However, during the Pandemic, when questions were asked in turn, via telephone, he spoke up when it was his turn.  Nothing to see here; just move along.

From Althouse, Professor Ann Althouse, 3 May 2021.

Here is the lede plus one:

"The justices now ask questions one at a time, in order of seniority.  Justice Thomas, who joined the court in 1991, goes second, right after Chief Justice John G. Roberts Jr., asking probing questions in his distinctive baritone....  If Justice Thomas’s questions differed from those of his colleagues, it was in their courtesy.  He almost never interrupted lawyers, though he asked pointed follow-up questions if there was time left.  Some of his most memorable comments were colorful asides.  Over the course of the last term, Justice Thomas mused about the ballooning salaries of college football coaches, said a police officer’s supposed 'hot pursuit' struck him as a 'meandering pursuit,' commented on the 'sordid roots' of a Louisiana law enacted to advance white supremacy and wondered how public schools should address students’ comments 'about current controversies, like protests or Black Lives Matter, antifa or Proud Boys.'...  The justices hope to return to the courtroom when the new term starts in October.  Once he is back on the bench, will Justice Thomas revert to his usual taciturnity?...  '[It's] fair to say that Justice Thomas may well prefer the orderly questioning of the current format as opposed to the feeding frenzy that can dominate when the justices are on the bench together.'  Irv Gornstein, the executive director of Georgetown’s Supreme Court Institute, said that 'there is one and only one way he will not return to form — if they retain justice-by-justice questioning.  And the odds of that happening.... are approximately zero.'"

Writes Adam Liptak in "Justice Clarence Thomas, Long Silent, Has Turned Talkative/The Supreme Court’s orderly telephone arguments, prompted by the pandemic, have given the public a revealing look at its longest-serving member" (NYT).

The only black person on the Supreme Court was silent for a decade, then using a new method, he became a fully equal participant, and the odds of preserving the new method are approximately zero?  Is that racist?

I don't think that Justice Thomas will return to his old ways.  I think he will look for opportunities and voice his questions and comments.  He may have found that he likes asking questions.

To answer Professor Althouse's question, no, it is not racism.  It is personality.  But, I think I could argue the opposite, that Justice Thomas, a Conservative Black member of the Court might feel that to ask questions in a somewhat rowdy environment, with several Progressive women in competition might come across wrong due to his race and political orientation  Yes, he might feel he has what he needs by reading and listening and there is no need to stir things up.  That would be sad.

Hat tip to the InstaPundit.

Regards  —  Cliff

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