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U.S. Supreme Court

An Anniversary Approaches for Justice Thomas: 5 Years Without Speaking in Arguments

Posted Feb 14, 2011 7:00 AM CDT
By Debra Cassens Weiss

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A week from Tuesday will mark the day that Justice Clarence Thomas has gone five years without making a comment during oral arguments.

Thomas wasn’t always silent, the New York Times reports. He spoke 12 times in the 2005-2006 term, and 11 times in the previous term. His last question was on Feb. 22, 2006, in a death penalty case.

His lack of questions contrasts with the talkative nature of his colleagues, who are increasingly peppering the lawyers with questions, the Times points out. In the 20 years that ended in 2008, the justices asked an average of 133 questions per argument, compared to about 100 in the prior 15 years. No other justice in the last 40 years has gone even an entire term without speaking.

Lawyers who argue before the court have varying opinions on Thomas’ decision to remain quiet. According to the story, “His views can be idiosyncratic, and some say lawyers deserve a chance to engage him before being surprised by an opinion setting out a novel and sweeping legal theory. Others say they are just as happy not to waste valuable argument time on distinctive positions unlikely to command a majority in major cases.”

Thomas has given a variety of reasons for his refusal to ask questions, the story notes. He has said he is self-conscious about his dialect, acquired from a rural Georgia upbringing. He has said he believes the lawyers should be given a chance to argue their case. And he has said it is difficult to get in a question. “We look like Family Feud,” he once said.

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