Constitutional Law

Thomas Talks Thrice

Big news this week from the U.S. Supreme Court: Justice Clarence Thomas asked a question.

Of course, he has asked lots of questions during his lifetime, although “do I need to report my wife’s income on this form” was apparently not one of them. But he virtually never asks questions during oral argument. In fact, when he asked one back on February 29, 2016 (“Can you give me another area where a misdemeanor violation suspends a constitutional right?”), that was the first question he had asked from the bench in over a decadeSee “Audible Gasps’ in Court as Justice Thomas Asks a Question” (Feb. 29, 2016) (noting that the earlier question was “[i]sn’t it more accurate that the trial court actually found that the evidence met the Gregory standard?” which Thomas asked on Feb. 22, 2006).

It is true that Justice Thomas was not completely silent on the bench during those ten years. But not counting the various breathing and rustling noises he almost certainly made from time to time, the only intentional sounds attributed to him were emitted on January 14, 2013, during argument in Boyer v. LouisianaSee JUSTICE THOMAS SPEAKS DURING ORAL ARGUMENT” (Jan. 14, 2013). Exactly what he had said remained unclear, however, until the release of the revised transcript ten days later—which revealed that he had in fact told a little joke. SeeUPDATE: Justice Thomas’s Full Joke Revealed” (Jan. 24, 2013). But the world had to wait another three years for an actual question, the one quoted above. And then the veil of silence descended again.

Until Monday.

Flowers v. Mississippi (argued Mar. 20, 2019)

As  you can see, Ms. Johnson had intended to waive rebuttal and was probably packing up her stuff until she was suddenly blindsided by a question from the least vocal judge in recorded history. And she does seem to have been caught a little off guard, because “I was not the trial lawyer” is not really an answer to the question he was asking. This is totally understandable, though, under the circumstances, and she quickly rallied in any event, answering Justice Thomas’s questions (and a couple from Justice Sotomayor), and then concluding strongly. Given the situation, that is an excellent recovery.

As you can also see, Thomas asked not one but three questions during this sitting, using 39 words in all. That is only one-third of his output during the February 2016 eruption, when he asked nine questions (and used 298 words to do it). All told, counting the 2006 verbiage, Justice Thomas is averaging almost exactly one question per year, and these have on average been associated with approximately 36.15 words each (not all of these are question words per se, of course).

They are plainly uttered in bursts at irregular intervals, however, so it would be unwise to make any predictions based on these statistics.

The issue in Flowers v. Mississippi is whether prosecutorial misconduct in earlier proceedings should be taken into account when considering whether later ones were unconstitutional. You may well find that more interesting than the average number of words Justice Thomas has uttered per year, and if so I would encourage you to read more about the case here at SCOTUSblog. They also mention Justice Thomas’s question during oral argument, so really we’re just emphasizing different things.