The WSJ Law Blog predicted that Justice Thomas would speak this morning during oral arguments. Unfortunately, they were wrong. I expected him to speak last year during one of the school board cases or during Morse.

As my avid readers will know, Justice Thomas hasn’t spoken during oral arguments in quite some time. The last time he spoke was in Bobby Lee Holmes v. South Carolina on February 22, 2006. This is what he had to say:

JUSTICE THOMAS: Counsel, before you change subjects, isn’t it more accurate that the trial court actually found that the evidence met the Gregory standard?
MR. ZELENKA: No. He specifically found, I believe, from my reading —
JUSTICE THOMAS: Well, he says —
MR. ZELENKA: — that it didn’t meet the Gregory standard.
JUSTICE THOMAS: Well, he says at first blush, the above arguably rises to the Gregory standard. However, the engine that drives the train in this Gregory analysis is the confession by Jimmy McCaw White. And then he goes on to say that that, of course, can’t be introduced because it’s hearsay. So it — it seems as though he says that if it is to be believed what Jimmy White says, it meets the Gregory standard.
So I don’t quite understand where Gay, which is subsequent to — to this case — where Gay comes in because it didn’t seem to be the standard that the trial court applied.

the engine that drives the train(!)… Excellent. After all the talk surrounding his silence, I expected that his comments to be nothing shy of Homeric. Instead, it sounds like he was doing exactly what he so adamantly criticizes- asking a question for the sake of making a point.



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