Clarence Thomas, the Quiet Supreme Court Justice

Arguing before the Supreme Court usually means answering pointed questions from the justices, but nervous lawyers would never have to worry about questions from Supreme Court Justice Clarence Thomas.

It has been two years and 142 cases since he last asked a question:

The questions may be helpful to the others, Thomas said, but not to him.

"One thing I've demonstrated often in 16 years is you can do this job without asking a single question," he told an adoring crowd at the Federalist Society, a conservative legal group.

The book tour showed that the topic comes up even among friendly audiences. Indeed, Thomas' comment was provoked by this question: Why do your colleagues ask so many questions?

His response: "I did not plant that question. That's a fine question. When you figure out the answer, you let me know," he said. - via kottke

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An anecdote:

My parents went to DC, and waited to see the SCOTUS in session. They'd been up for a while, and had to wait for a while, and my mother was nodding off in the viewing gallery.

The guard, or baliff, or whatever nudged her and said "you can't sleep here".

She pointed at Justice Thomas, and said "what about him?" He was asleep on the bench. (or, at least, his chin was down, and he hadn't moved for some time....they couldn't see his eyes)

I think the anecdote probably illustrates more why he doesn't ask questions, than anything else.
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I kind of like his style. In the end its not up to the judge to make sure that the lawyers present their best arguments, its his job to judge what the final result should be. When you see the law as something simplistic you damn him for his methodology, when you see it as very complex it almost seems the most logical way to judge.
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Shacky: asking a question is necessarily playing the game. One side, a question can go for persuading others the swing votes; Thomas doesn't do this. His question in Holmes, on the other hand, was to point out a glaring error in interpretation. He wasn't asking to persuade, he was asking to 'inform' counsel.

And that's the distinction here: Thomas has an interesting way of addressing the docket, one that doesn't need oral arguments. He's one of the most studied persons on the Framer's of our Constitution, if not THE most studied person. I think, per my opinion that he'll speak up in Heller, that he will ask not to persuade, but to 'inform' counsel for DC that they have made a glaring error in interpreting the 2nd Amendment and the Framer's intent. I guess you could construe this as 'persuading' the swing-vote, but the label stems from his intent, not the outcome.

I'm not giving Thomas a free pass...although I do think his stance gives some grounding to the Court. I would personally approach the docket in a different way. I'm just explaining that there's more to this than that silly article says and hopefully prevent the wrong conclusion, that Thomas isn't 'interested'. While I think Thomas was VERY right on some decisions (Kelo v. New Londong, dissenting that "something has gone terribly wrong here"....), he has been wrong on others (like Hamdi).

Btw, if you think that Thomas is the only one who has made his mind up before oral arguments, you're terribly wrong.
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