“One thing I’ve demonstrated often in 16 years is you can do this job without asking a single question.” -Justice Clarence Thomas, 2008
And no justice in history has demonstrated that better. On average, for the last 20 years, justices have asked between 100-150 questions per hour-long argument. But for 10 years, Justice Clarence Thomas has held stony silence on the bench, attending the hearings and cases, but never inquiring. That is, until last week.
The last time he’d asked anything was in 2006 when he was hearing a death penalty case and asked:
“Counsel, before you change subjects, isn’t it more accurate that the trial court actually found that the evidence met the Gregory standard?” -Justice Clarence Thomas, 2006
Which sounds more like a clarification than an actual question. But that was it. Then for 10 years he kept quiet, aside from a comic hiccup in 2013*. And last week on February 29th, he broke that apparent vow of silence – stunning the courtroom during a hearing over domestic violence policies. He asked government attorney Ilana H. Einstein:
“This is a misdemeanor violation, it suspends a constitutional right. Can you give me another area where a misdemeanor violation suspends a constitutional right?” -Justice Clarence Thomas, 2016
One can’t help but wonder why? Why did he keep so quiet for so long in the first place? And why did he speak up now?
No one, but Justice Thomas himself, knows the answers to those questions. Leaving the public to speculate:
Concerning his silence, many suggest that he wouldn’t ask questions because the Justices have to be very well acquainted with the subject matter of their cases before they hear them. Others have assumed that he didn’t speak because he believed that his comrades on the bench did more than enough talking. And some [less credible] sources theorize that Thomas has actually been dead for several years now, and whatever is sitting on that bench is either reanimated or some kind of replacement actor who looks like Thomas, but sounds very different (though this is obviously false, as proved by his recent verbalization).
And why did he break that silence? Maybe it is as simple as, he wanted to ask someone named Einstein a question. Who wouldn’t be excited to ask Einstein something? This is certainly possible, but unlikely. A more realistic possibility could have to do with the recently empty seat on the Supreme Court bench…
Justice Antonin Scalia died on February 13th – only 16 days before Clarence Thomas asked his most recent question. The proximity of these dates has raised some eyebrows. Justices Scalia and Thomas were the two most conservative members of the Court and had similar judicial philosophies. It is possible that Justice Thomas has stepped forward to compensate for the absence of the highly vocal Antonin Scalia – essentially filling the conservative void.
In the coming months and years we will see if Justice Thomas continues to be vocal. Which is probably very dependent on who gets anointed to fill Scalia’s judicial throne – if Obama makes a decision and appoints a liberal justice, we may see Thomas asking questions frequently through the rest of his tenure, to balance the ideology. But if a conservative Justice gets the seat, who is to say we won’t see Justice Clarence Thomas quietly shrink back into his shell, never to ask questions again?
* In 2013 he quietly cracked a joke, knocking his own Alma Mater: Yale (disagreeing with a lawyer who claimed all Yale-educated lawyers are competent).
Sources:https://www.quora.com/When-was-the-last-time-Clarence-Thomas-asked-a-question-during-the-Supreme-Courts-oral-arguments, https://www.thelastamericanvagabond.com/featured/on-supreme-court-justices-unlimited-term-length-and-unreviewable-power-in-american-government/, https://en.wikipedia.org/wiki/Clarence_Thomas, https://www.washingtonpost.com/politics/texas-tv-station-scalia-died-of-a-heart-attack/2016/02/14/938e2170-d332-11e5-9823-02b905009f99_story.html