Clarence Thomas & Oral Arguments: Taciturn to Talkative

in early 2016 the Supreme Court heard arguments in a gun ownership case Mr chief justice and may have pleased the court as the hour-long session was coming to an end if there are no further questions one of the justices leaned into the mic and to everyone's surprise said um one question for most Supreme Court Justices asking questions during oral arguments is part of the job but until that February day Justice Clarence Thomas who joined the court in 1991 had gone more than a decade without asking a single question after just a few months he went another three years in interviews Thomas has said that the free-for-all nature of the Court's hot bench is chaotic and unproductive he's gone so far as to compare it to the game show Family Feud it's the risk that you run when we are this active is that you are beginning to monopolize the time that or freeze out the time that the lawyers should have to make their arguments then suddenly in 2020 Justice Thomas became an active questioner so what changed why after all those years of Silence did Justice Thomas decide to jump in was the way the court did oral arguments flawed to answer that we have to go back to the Court's beginnings if you go back to the early days of the Republic Supreme Court arguments used to take days that's Paul Clement he's a bit of a regular at the Supreme Court I just had my 110th argument in front of the Supreme Court not that anyone's counting it was much more like the British system Daniel Webster one of the very famous early Advocates once was up before the court for four days doing his arguments and that's Sarah Harris she clerked for Clarence Thomas and now represents clients in appellate courts including the Supreme Court over time arguments were cut down to last about an hour justices eager to get the answers they needed started asking more and more questions but the hot bench got even hotter after the appointment of Justice Thomas's longtime ideological partner I think Justice Scalia joining the bench in the 1980s actually made a huge difference because he was such an avid questioner even the justices who'd been on the court for a while before him they weren't going to let the new guy ask all the questions it's really been ever since then I think almost every justice has been more inclined to ask questions than the Justice they replaced there's another respect I'm sorry well what is it directed There once we get to the courthouse it doesn't finish her sentence the hot bench did not entice Justice Thomas to ask questions and the other thing he said by the time the argument was over most of the other Justice had asked most of his questions but the month Justice Scalia died Thomas finally broke his silence there's probably no justice who sort of thought about legal issues more similarly to Justice Thomas than Justice Scalia they had that same kind of textualist focus and originalist focus but the real turnabout that made Thomas one of the Court's most vocal members came from an unexpected event coronavirus coronavirus covet 19. the U.S Supreme Court is doing something unprecedented for oral arguments it's hearing these cases now over the form the pandemic changed everything you were doing an argument over the telephone from your study or your office so the court Had Each Justice in order of seniority asked questions which meant that Justice Thomas went right after the Chief Justice it was striking to me the number of times in these telephonic arguments where one of the other justices would refer back to Justice Thomas's question I'm following I'm from Justice Thomas just to return a question that Justice Thomas posed I'd like to return to Justice Thomas's question which begs the question was the old hot bench the best way was Thomas Wright were the justices asking too many questions some legal Scholars have argued that the hot bench has a detrimental effect on the court that it's free for all nature leads justices more toward espousing their personal views than acting as impartial judges but not everyone agrees the worst oral Arguments for me is when you have a so-called cold bench and you're just kind of talking to yourself that's nerve-wracking it is fun in some ways to be dealing with multiple justices at once and you really do get a sense of how strongly they feel about a case and what's on their mind like many good things it can also be taken to excess in 2022 after two years of being remote the court returned to in-person hearings and Clarence Thomas whose views Once On The Fringe of the Court are now dominant has kept his habit of asking questions first is he speaking out more now because he's the de facto ideological leader of the Court we don't know for sure what we do know is that future Court Watchers can expect to hear a lot more of this one question [Music]

Channel: Bloomberg Law

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Id: l3OvY0Z6Jug

Length: 5min 33sec (333 seconds)

Published: Fri Sep 30 2022