Wednesday, October 7, 2020

Justice Thomas Questions

In hearing Supreme Court telephone oral arguments again this week, I'm reminded again of the newsworthiness of Justice Clarence Thomas asking questions. When this first happened in the spring, the legal world was alight with delight at his questions.

On the one hand I found it less noteworthy for a few reasons. I once heard an interview with Justice Thomas wherein he was asked about his propensity not to ask questions, and he had a simple explanation: He liked to hear what people had to say. I think that's true. I get the impression that to him it’s not really that big of a deal.

The change in format from an open session in the courtroom to a telephone teleconference has had significant effects on oral arguments including who asks questions and when. Having a designated time to ask questions in order of seniority changes the dynamic. Justice Thomas is now first, and he indeed uses his time for questions to ask questions.

When asking their own questions, some of the subsequent justices have made reference to Justice Thomas' questions. Just as other justices sometimes have the same questions as Justice Thomas, perhaps in the other format, Justice Thomas has many of the same questions they do. However, there he may not need to ask them in that format if someone else already has. All the justices are steeped in the law and know the legal issues each case involves in the questions they are being asked to resolve.

Another Supreme Court dynamic this news drew out from the legal world is SCOTUS litigators covet getting a rare question from Justice Thomas. Perhaps that’s more true for lawyers on one end of the judicial philosophy spectrum than the other.

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