Thomas silent on the bench for 5 years

He stands out on loquacious court

Clarence Thomas has complained about the difficulty of getting a word in edgewise during arguments. Clarence Thomas has complained about the difficulty of getting a word in edgewise during arguments.
By Adam Liptak
New York Times / February 13, 2011

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WASHINGTON — The anniversary will probably be observed in silence.

A week from Tuesday, when the Supreme Court returns from its midwinter break and hears arguments in two criminal cases, it will have been five years since Justice Clarence Thomas has spoken during a court argument.

If he is true to form, 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.

In the past 40 years, no other justice has gone an entire term, much less five, without speaking at least once during arguments, according to Timothy R. Johnson, a professor of political science at the University of Minnesota.

Thomas is guarded in public but gregarious in private. He avoids elite universities but speaks frequently to students at regional and religious schools. In those settings, he rarely dwells on legal topics but is happy to discuss a favorite movie, like “Saving Private Ryan.’’

Thomas has given various and shifting reasons for declining to participate in oral arguments, the court’s most public ceremony.

He has said, for instance, that he is self-conscious about the way he speaks. In his memoir, “My Grandfather’s Son,’’ he wrote that he had been teased about the dialect he grew up speaking in rural Georgia. He never asked questions in college or law school, he wrote, and he was intimidated by some fellow students.

Elsewhere, he has said that he is silent out of simple courtesy.

“If I invite you to argue your case, I should at least listen to you,’’ he told a bar association in Richmond in 2000.

Thomas has also complained about the difficulty of getting a word in edgewise. The current court is a sort of verbal firing squad, with the justices peppering lawyers with questions almost as soon as they being their presentations.

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

“The post-Scalia court, from 1986 onward, has become a much more talkative bench,’’ Johnson said. Justice Antonin Scalia alone accounted for almost a fifth of the questions in the past 20 years.

Thomas’s attitude toward oral arguments contrasts sharply with that of his colleagues, who seem to find questioning the lawyers who appear before them a valuable way to sharpen the issues in the case, probe weaknesses, consider consequences, and correct misunderstandings.

Thomas’s last question from the bench, on Feb. 22, 2006, came in a death penalty case. He spoke 11 times earlier in that term and the previous one.

Thomas’s most famous comments came in a case involving race. In a 2002 argument over a Virginia law banning cross burning, his reflections may well have altered the outcome of the case.

“This was a reign of terror, and the cross was a symbol of that reign of terror,’’ he said. “It was intended to cause fear and to terrorize a population.’’ The court ruled that states may make it a crime to burn a cross if the purpose is intimidation.