SCOTUS & Silence

Justice Thomas Speaks!

There is rather too much shouting these days so it is nice to be able to turn to the subject of silence. In a recent and very good article on the Supreme Court, Jeffrey Toobin provides the following sentence:

“On February 29th, Clarence Thomas, Scalia’s frequent ideological ally, asked his first question in more than a decade at an oral argument. He then resumed his customary silence for the remainder of the term.” (Jeffrey Toobin, “Annals of Law,”The New Yorker, Oct. 3, 2016. p.29).

Although I was aware that Thomas was rather tight-lipped and had not spoken for years, I was unaware that the string of silence had been broken and thought I should share the news with you.

February 2006 to February 2016 - The Silent Decade

Once again, you may think I make up these stories so I will provide some substantiation below.  Here are some related articles from the last five years presented in chronological order.

“No Argument: Thomas Keeps 5-Year Silence,” Adam Liptak, The New York Times, Feb. 12, 2011.

“If he is true to form, Justice Thomas will spend the arguments as he always does: leaning back in his chair, staring at the ceiling, rubbing his eyes, whispering to Justice Stephen G. Breyer, consulting papers and looking a little irritated and a little bored. He will ask no questions.”

“The Thomas Issue” , The New York Times, Feb. 17, 2011,

“When the Supreme Court hears arguments next week, it will mark the fifth anniversary of Justice Clarence Thomas’s silence during oral argument — unless he chooses to re-enter the give-and-take. We hope he will.”

“Justice Clarence Thomas Breaks His Silence,” Adam Liptak, The New York Times, Jan. 14, 2013.

This was the first time he has spoken since 2006, but it really doesn’t count since he was making a joke and there is some confusion about what he actually said.

“It is not unusual for Justice Thomas to banter with the members of the court who sit next to him, Justices Scalia and Stephen G. Breyer. But those communications are inaudible in the courtroom. This remark seemed meant for public consumption.”

“It’s Been 10 Years. Would Clarence Thomas Like to Add Anything?,” The New York Times, Adam Liptak, Feb. 1, 2016.

“When the Supreme Court returns from its winter break this month, it will hear two minor cases and reach a major anniversary. Unless something very surprising happens during the arguments that day, Justice Clarence Thomas will have gone 10 years without asking a question from the bench.

“Maintaining a decade-long vow of silence takes monkish dedication and a certain stamina, and Justice Thomas has no modern competition.”

“Clarence Thomas Breaks 10 Years of Silence at Supreme Court”, The New York Times, Adam Liptak, Feb. 29, 2016.

“A Decade Later, Clarence Thomas Speaks Again,” Jesse Wegman, The New York Times, Feb. 29, 2016.

“Ten years and one week after it began without warning or explanation, Justice Clarence Thomas’s unofficial vow of silence has ended.

On Feb. 22, 2006, Justice Thomas asked a question in a death-penalty case. He did not ask another until Monday morning, in a case involving a challenge to a federal law that prohibits people convicted of domestic violence from owning a gun.”

“For First Time in 10 Years, Justice Clarence Thomas Asks Questions During an Argument,” Robert Barnes, The Washington Post. Feb. 29, 2016.

In Justice Thomas’s defence I will note that he thinks his colleagues chat too much and that they should let the lawyers’ make their cases without constant interruptions. In support of his argument, I did find this:

“In the 20 years that ended in 2008, the justices asked an average of 133 questions per hour long argument, up from about 100 in the 15 years before that.”

If Joseph Mitchell could show up for work for years at the The New Yorker and not provide a word for that publication, I suppose we should cut the Justice some slack for being silent from the bench for only a decade.