The big news in the world of the Supreme Court today is that Justice Thomas finally spoke at oral argument. It is not clear exactly what he said — the transcript provides very little guidance — but we will hopefully know more when the audio from oral argument is released on Friday.
How often has Justice Thomas spoken in the past? Not a lot. Prior to OT2004, Supreme Court transcripts read only “QUESTION:” when a Justice spoke, rather than identifying the Justice by name. Beginning in October 2004, the transcript began identifying Justices’ individually, allowing advocates to better analyze transcripts and allowing scholars to better study oral argument at the Supreme Court. It also let me measure how many times a particular judge got the courtroom to erupt in laughter.
Based on transcripts that identify Justices by name, Justice Thomas hasn’t been especially chatty on the bench.
Justice Thomas’ participation before OT 2004 is harder to measure but several sources note that he spoke very sparingly. David Savage estimated in 2007 that Justice Thomas spoke “roughly once per Term”:
Only Justice Clarence Thomas is silent on the bench. Roughly once per term, he asks a question during oral arguments. Still, Thomas’ studied silence prompts lots of speculation. With his passive expression and long gazes at the ceiling, he looks out of place amid his engaged and animated colleagues.
In 2002, Dahlia Lithwick observed that Justice Thomas speaks only four or five times per Term:
Many of us in the courtroom were surprised simply at the sound of his voice; he speaks only four or five times a year, less often than most of his colleagues speak during an average morning.
So it seems clear that Justice Thomas speaks very sparingly. The more interesting question, however, is what his relative silence means for his objectives, the Court’s legitimacy, and the rule of law. I think it means relatively little for the latter two; legal and political circles often joke about his lengthy silence but I think it means little to the Court as an institution. As Justice Thomas remained silent, his colleagues continued to ask questions at a feverish pace.
But Justice Thomas’ silence might negatively impact his ability to persuade his colleagues to join his outside-of-the-mainstream views. David Karp wrote an interesting student Note in the Florida Law Review in 2009 where he argued that Justice Thomas would serve his own interests by engaging advocates — and by extension other members of the Court — during oral argument. But Karp also argues that Justice Thomas’s odd combination of silence during oral argument and comparatively bold writings weakens the Court as an institution:
This Note argues that Justice Thomas’ profound silence during oral argument undermines the Court’s deliberative process — and weakens the legitimacy of the far-reaching conclusions, like those in Morse, that Justice Thomas reaches without the benefit of briefing or oral argument. By removing himself from oral argument, Justice Thomas’ opinions do not benefit from the full adjudicative process designed to test theories in open court. Many of his opinions, therefore, read less like the product of actual litigation, and more like constitutional commentary on issues related to — but not directly raised in — a case. Justice Thomas’ silence on the bench is more than a peculiarity; it allows him to announce new theories of the Constitution without vetting those theories in open court.
I can’t say I completely subscribe to Karp’s argument, but his Note does make for an interesting read. To boot, the sources he chooses to support his argument are exquisite (especially the second source in footnote 17)!