Judge Clarence Thomas has asked the first question in all four oral arguments so far this term, a notable turnaround for someone who has been silent on the bench for more than a decade.
Thomas’ more engaged role in oral argument comes as the judges returned to the courtroom this week after a remote format change he also participated in more frequently. Instead of a free system for all, where the judges intervene as they please, they took turns asking questions in order of seniority.
It hasn’t stopped now that the court has moved to a hybrid format in the new term, with judges free to step in and then have the opportunity to ask questions by seniority later in the argument.
By asking the first question, Thomas, who is now the court’s senior associate judge, takes on a role frequently played by the late judge Ruth Bader Ginsburg during her tenure.
“He’s been a really good leader in asking questions to try to get lawyers to play out some of the parts of the arguments where there might be more tension for the court to explore,” said Jennifer Mascott, law professor at George Mason University and former Thomas Clerk, who noted that several judges stepped in to follow up on a question from his former boss.
Thomas, 73, will mark the 30th anniversary of his entry into court later this month. When he joined the court, there wasn’t such a “hot bench,” Mascott said, meaning the judges didn’t ask as many questions as they are now.
Before the pandemic, Thomas explained that he believed his colleagues were coming to ask too many questions, leaving advocates little time to deliver their arguments.
Even then, he was not disengaged from the bench, Mascott said. Observers watching him closely could see him interacting in private with his then-neighbor on the bench, Judge Stephen Breyer, she said. It just wasn’t “part of the fray to interrupt and talk to people,” she said.
As the second-highest-ranking judge, Thomas has frequently asked questions in the new format during the pandemic. However, it was not clear whether these questions would continue when the court returned to in-person arguments for the start of the 2021 term on Monday.
Thomas didn’t wait for the follow-up round to kick off this week.
“If you were writing on a clean slate, how would you coordinate” the two rules at issue in the habeas case Brown v. Davenport that the judges heard on Tuesday. He continued to actively question each of the other three attorneys who pleaded on the second day of the warrant.
Mascott said his eagerness to speak is consistent with his earlier emphasis on the importance of letting the lawyer have a chance to speak and “for judges and lawyers to listen to each other.”
“Now that there is more order, he speaks and has questions,” Mascott said.
The court hears arguments in person with a limited audience, consisting only of clerks and a handful of journalists. Only Judge Brett Kavanaugh, who tested positive for Covid-19, was not in the courtroom. He participated in the arguments from a distance.
The court will hear five more arguments at its October sitting, including the Boston Marathon Bomber case on October 13.