Once again, we get more of the "why doesn't Clarence ask questions" stories that pop up a couple of times a year in the media. This one notes it has been about two years sine the last time he asked a question during oral arguments.

Two years and 144 cases have passed since Supreme Court Justice Clarence Thomas last spoke up at oral arguments. It is a period of unbroken silence that contrasts with the rest of the court's unceasing inquiries.

Hardly a case goes by, including two appeals that were argued Monday, without eight justices peppering lawyers with questions. Oral arguments offer justices the chance to resolve nagging doubts about a case, probe its weaknesses or make a point to their colleagues.

Left, right and center, the justices ask and they ask and they ask. Sometimes they debate each other, leaving the lawyer at the podium helpless to jump in. "I think you're handling these questions very well," Chief Justice John Roberts quipped to a lawyer recently in the midst of one such exchange.

Leaning back in his leather chair, often looking up at the ceiling, Thomas takes it all in, but he never joins in.

Monday was no different. Thomas said nothing.

Of course, Thomas is in great company with his style. For most of the Court's history, oral arguments did not involve questioning the advocates during oral arguments. John Marshall, generally considered to be the greatest member of the US Supreme Court, generally didn't ask questions from the bench, nor did Joseph Story and the other giants of the nineteenth and early twentieth century. That changed with the coming of the Roosevelt justices in the 1930s, as FDR made a practice of picking law professors who took their classroom methodology into the courtroom.

Is there anything wrong with asking no questions during oral arguments? Certainly not -- indeed, I'd argue that there is something better about trying to give the lawyers for the parties a respectful hearing. We might be better served by having more of the members of the High Court follow his example

Posted by: Greg at 01:12 AM | Comments (2) | Add Comment
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