WASHINGTON — Justice Clarence Thomas, who once went a decade without asking a question from the Supreme Court bench, is about to complete a term in which he was an active participant in every single argument.
Thomas’ switch from monkish silence to gregarious engagement is a byproduct of the pandemic, during which the court has heard arguments by telephone. The justices now ask questions one at a time, in order of seniority.
Thomas, who joined the court in 1991, goes second, right after Chief Justice John Roberts, asking probing questions in his distinctive baritone.
“It’s been a lemonade out of lemons situation,” said Helgi C. Walker, a lawyer with Gibson, Dunn & Crutcher who served as a law clerk to the justice. “I’m just thrilled that more people get to hear the Justice Thomas that we all know.”
“He can be one of the most loquacious people you’ve ever met,” she said. “He is extremely chatty.”
In the telephone arguments, he asked tough questions of both sides and almost always used his allotted few minutes. The idiosyncratic legal views that characterize his frequent concurring and dissenting opinions were largely absent from his questioning, which was measured and straightforward.
If Thomas’ questions differed from those of his colleagues, it was in their courtesy. He almost never interrupted lawyers, although he asked pointed follow-up questions if there was time left.
Some of his most memorable comments were colorful asides.
Over the course of the last term, Thomas mused about the ballooning salaries of college football coaches, said a police officer’s supposed “hot pursuit” struck him as a “meandering pursuit,” commented on the “sordid roots” of a Louisiana law enacted to advance white supremacy and wondered how public schools should address students’ comments “about current controversies, like protests or Black Lives Matter, antifa or Proud Boys.”
When a lawyer mistakenly called him “Mr. Chief Justice,” he responded, in a light, joking tone, “Thank you for the promotion.”
Lawyers who appear frequently before the court said they welcomed Thomas’ participation.
“He is an excellent questioner, and an important voice on the court,” said Gregory G. Garre, a lawyer with Latham & Watkins who served as solicitor general under President George W. Bush.
“His questions are clear, fair and focused on resolving the heart of the dispute before the court, not tangential issues,” Garre said. “Often, his questions have a practical element to them, testing the real-world ramifications of a party’s position. He’s not trying to set traps or debate academic issues.”
Garre said Thomas’ questions at the court’s first phone argument, over whether Booking.com could trademark its name, refocused the court with a smart analogy. The justice asked how an internet domain name differed from a 1-800 phone number, noting that 1-800-PLUMBING is a registered trademark.
Justices Ruth Bader Ginsburg and Stephen Breyer pursued the point, and Booking.com prevailed, in Ginsburg’s last majority opinion.
Thomas has explained his silence in the courtroom as a matter of simple courtesy driven by an aversion to the free-for-all barrage of questions from the bench that characterizes modern Supreme Court arguments.
“I think it’s unnecessary in deciding cases to ask that many questions, and I don’t think it’s helpful,” he said at Harvard Law School in 2013. “I think we should listen to lawyers who are arguing their cases, and I think we should allow the advocates to advocate.”
“We look like ‘Family Feud,’” Thomas told a bar group in 2000.
Over the years, he has given other explanations for keeping quiet.
In his 2007 memoir, “My Grandfather’s Son,” he wrote that he had never asked questions in college or law school and that he had been intimidated by some of his fellow students.
He has also said he is self-conscious about the way he talks, partly because he had been teased about the dialect he grew up speaking in rural Georgia.
Whatever its basis, his decadelong dry spell set a modern record. It has been at least 50 years since any other member of the court went even a single term without asking a question.
When he did speak from the bench, the effect could be electrifying. In 2002, for instance, the courtroom was riveted when he shared his reflections on the meaning of a Virginia law that banned cross burning, recalling “almost 100 years of lynching” in the South by the Ku Klux Klan and other groups.
“This was a reign of terror, and the cross was a symbol of that reign of terror,” he said, adding, “It was intended to cause fear and to terrorize a population.”
The court’s last argument of the term is set for Tuesday. It will take place by phone, and Thomas will doubtless participate.
The justices hope to return to the courtroom when the new term starts in October. Once he is back on the bench, will Thomas revert to his usual taciturnity?
“I hope not,” Garre said. “He has contributed significantly to oral arguments over the past year, and it would be a real loss for the court, advocates and the public if he went silent. But it’s also fair to say that Justice Thomas may well prefer the orderly questioning of the current format as opposed to the feeding frenzy that can dominate when the justices are on the bench together.”
Irv Gornstein, the executive director of Georgetown’s Supreme Court Institute, said that “there is one and only one way he will not return to form — if they retain justice-by-justice questioning.”
“And the odds of that happening,” he said, “are approximately zero.”