(A few additional observations, after the jump).
Interestingly enough, the revised transcript makes it look like Justice Thomas was getting a dig in at Harvard Law School. Here’s a bigger excerpt:
Some observers in the courtroom, though, thought that Justice Thomas was poking fun at his alma mater, Yale Law School. Alas, the underlying audio — listen here, around the 41:00 mark — isn’t very enlightening.
[W]hy did [Justice Thomas's hard-to-hear] words merit a front-page story in the [Washington] Post, an equally detailed account in the New York Times, even a post and discussion on the Yale Law alumni blog? The answer, alas, is that the story conforms to the widespread notion on the left that Justice Thomas doesn’t participate in oral arguments because (a) he’s unable to do so because he isn’t very smart, and (b) as a black conservative he’s a peculiar character, and here’s another symptom.
To be honest, I think this goes too far. I have the highest respect for Justice Thomas as a jurist, but I still thought it was worth noting (and writing about) his piping up at argument. It’s not a matter of holding Justice Thomas in low regard; it’s about being a Supreme Court dork. (I suspect that Professor Josh Blackman, who also wrote about Justice Thomas speaking at argument, holds a similarly high opinion of CT.)
The Weekly Standard post does go on to provide some useful historical context:
In its early years, the Supreme Court was largely dependent on oral arguments in place of briefs, and so justices were inclined to ask questions and, in effect, debate with advocates. But after the 1830s, the Court adopted more businesslike practices, and oral exchanges between justices and lawyers declined.
Official transcripts of proceedings date only from the era of the Warren Court, but there is little record — in memoirs, historic monographs, or journalistic accounts of Court proceedings — of such giants as Louis Brandeis or Oliver Wendell Holmes, for example, engaging advocates during oral argument. Indeed, the preeminent liberals on the modern Supreme Court — William O. Douglas and William J. Brennan — were, like Clarence Thomas, deliberately circumspect during proceedings.
Which proves nothing, of course — except that some modern justices, for various reasons, like to engage in rhetorical duels with lawyers, but Justice Thomas prefers to keep his mouth shut and let the advocates make their case.
And modern audiences, for various reasons, like it when justices engage in rhetorical duels with lawyers. We enjoy seeing great advocates get challenged and probed by great judges. Is that so wrong?