Supreme Court Justice Clarence Thomas had not asked a question at oral arguments for ten years
He broke that streak Monday
For the first time in a decade, Supreme Court Justice Clarence Thomas spoke during oral arguments.
Just last week, CNN wrote about the 10 years since Thomas’ last question at oral arguments. That anniversary, February 22, came on the same day the Supreme Court first heard oral arguments after the death of Justice Antonin Scalia, who was Thomas’ ideological soul mate and who had defended his lack of questions over the years.
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“No one was more ideologically aligned with Justice Scalia than Justice Thomas, who has historically been reluctant to ask questions at oral argument because he believes his colleagues already do more than enough talking,” said CNN contributor Stephen I. Vladeck. “That he’s now asking questions – for the first time in over a decade – is as powerful evidence of the impact of Justice Scalia’s absence as anything we’ve seen from the justices thus far,” he said.
The comments from Thomas were directed at a government attorney Ilana H. Eisenstein in a case called Voisine v. United States. The case concerns whether a prior domestic assault conviction based on reckless conduct qualifies as a misdemeanor crime of domestic violence that would block the plaintiffs from possessing a firearm.
“Everyone leaned in disbelieving,” said Slate’s Dahlia Lithwick, who was in the courtroom. “The colloquy went back and forth several times with Thomas pressing the assistant solicitor general,” Lithwick said.
“This is a misdemeanor violation,” Thomas said at one point to Eisenstein. “It suspends a constitutional right. Can you give me another area where a misdemeanor violation suspends a constitutional right?” he asked.
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Thomas has offered a variety of reasons for his silence from the bench.
“We have a lifetime to go back in chambers and to argue with each other,” Thomas said in 2013, according to The Associated Press. He noted that the lawyers only have about 30 minutes to present their side of the case. “They should argue. That’s a part of the process.” Thomas said and added that he doesn’t like to “badger people.”
Although Scalia and Thomas disagreed on some cases, they agreed on many and were close friends. Thomas was a lector at Scalia’s funeral and released a statement after his death saying, “It is hard to imagine the court without my friend. I will miss him beyond all measure.”
The two men had radically different styles from the bench, however. Scalia often peppered advocates with questions while Thomas silently listened.
Scalia defended his colleague’s silence, and asked enough questions for the both of them.
In 2012, he told CNN’s Piers Morgan that when he was a young lawyer he appeared before the justices as an advocate and was only asked two questions.
“It was not at all unusual for justices not to ask questions,” Scalia said.
“Thurgood Marshall rarely asked a question. Bill Brennan rarely asked questions,” he said, referring to retired iconic justices.
“Leave Clarence alone!” Scalia joked.
Carrie Severino, a former clerk for Thomas, said she was surprised Thomas decided to break his silence, because of his long-held belief that the number of questions during oral argument had become excessive.
“It is possible that Thomas was asking a question that he thought Scalia might have brought up,” said Severino, “or, maybe he thought of a question that no one else was asking,” she said.