Clarence Thomas 2 Justice Clarence Thomas Above the Law blog.jpgIf you’ve done any significant amount of appellate work, surely you’ve argued before one of THOSE judges. A judge who asks questions at oral argument just for the sake of asking questions. A jurist in love with the sound of his or her own voice. They can be entertaining or exasperating, depending upon whether you’re in the gallery or at the podium.
But surely there must be a happy medium between showboat judges and Justice Clarence Thomas. From the AP:

Justice Clarence Thomas sat through 68 hours of oral arguments in the Supreme Court’s current term without uttering a word.

That’s saying something — or not — even for the taciturn justice.

In nearly 16 years on the Court, Thomas typically has asked questions a couple of times a term…. But the last time Thomas asked a question in court was Feb. 22, 2006, in a death penalty case out of South Carolina. A unanimous Court eventually broadened the ability of death penalty defendants to blame someone else for the crime.

Impressive. Is CT trying to set some sort of record?
A few more words — more than you’ll get out of Justice Thomas, at any rate — after the jump.


Here is an interesting statistic:

A recent tally by McClatchy Newspapers underscored this point: Thomas has spoken 281 words since court transcripts began identifying justices by name in October 2004. By contrast, Thomas’ neighbor on the bench, Justice Stephen Breyer, has uttered nearly 35,000 words since January.

Now look, we have nothing against Justice Thomas. He is a true visionary with respect to constitutional law, as even liberals like Professor Cass Sunstein concede. He produces excellent written opinions. And as Jan Crawford Greenburg notes in Supreme Conflict, he often persuades other members of the Court to adopt his point of view. Clearly taxpayers are getting some value for the $203,000 that CT earns as an Associate Justice.
But what purpose does it serve to have CT at argument, if he’s not going to say anything? If he’s just going to sit there, sucking up oxygen that could go to the lungs of his older colleagues, what is the point?
It’s a waste of his time, and taxpayer money. And it’s unfair to conservatives to lose out on what a right-leaning justice might contribute to oral argument.
This situation plainly cries out for reform. Here are a few possible ideas:
1. Place a cardboard cutout of Justice Thomas in his chair instead, and let Justice Scalia ask twice as many questions as he currently does.
2. Have the Thomas clerks take turns occupying their boss’s chair at argument — and asking the occasional question (in between pretending to doze off, like their boss).
3. Cut Justice Thomas’s pay in half, and parcel out the money saved to the eight other justices, in proportion to how many questions they ask at argument.
(It’s not like CT needs the money. He snagged a seven-figure advance for his memoir, slated for publication on October 16.)
4. Prohibit Justice Breyer from speaking in the first five minutes of any advocate’s presentation. Or send a mild electrical shock through SGB every time he offers up a hypothetical.
If you have any suggestions of your own for how to address this situation, feel free to share them in the comments.
Justice Thomas Asks No Questions During Entire Court Term [Associated Press]
Transcripts give a glimpse into many justices’ personalities [McClatchy Newspapers]
Thomas memoir to get large first printing [USA Today]
Visionaries on the Supreme Court [Volokh Conspiracy]


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