Call-in court brings out an unusually chatty Clarence Thomas

Supreme Court Justice Clarence Thomas once went 10 years without asking a single question. Now, as the court hears its first ever arguments by telephone, the famously reticent justice has become an active participant.

John Amis/AP
Supreme Court Justice Clarence Thomas delivers a keynote speech in Atlanta, Georgia, Feb. 11, 2020. Before this week, the intervals between Mr. Thomas' questions during high court arguments were measured in years, but the call-in format is changing courtroom dynamics.

A Supreme Court justice gets it in his mind to ask a question, and pretty soon, he's got questions for everyone. And so the next question: Will Clarence Thomas ever stop talking?

Before this week, the intervals between Mr. Thomas' questions during high court arguments were measured in years. He once went 10 years, from 2006 to 2016, without asking even one.

Now he's been an active questioner for three straight days. He'll have the chance to continue his streak next week in six arguments over three days.

It might be the setting, the court's first arguments by telephone, because of the coronavirus pandemic.

“I must say, as a former clerk, I’m delighted that a silver lining of the new format in this difficult time is that the public can see the extraordinary combination of preparation, thoughtfulness, and grace the Justice brings to every case,” Elizabeth Papez, partner in a big Washington, D.C., law firm said in an email.

The new arrangement has made for more structured proceedings, with justices taking turns instead of jumping in whenever they wanted. Only Chief Justice John Roberts goes before Mr. Thomas, the longest-serving justice. He joined the court in 1991.

One reason Mr. Thomas has given over the years for his reticence is that he thinks his colleagues talk too much and don't give the lawyers before them the courtesy of presenting arguments they have sweated over for weeks and months. He's also told the New York Times he developed a habit of listening over speaking after being mocked for the Gullah dialect he spoke as a boy in Pin Point, Georgia.

“It confirms in one sense what Justice Thomas has said about the excessive interruptions," said Nicole Stelle Garnett, a University of Notre Dame law professor who once worked for Mr. Thomas.

The contrast between Mr. Thomas on the phone and in person is stark.

In the courtroom, the justice often reclines in his chair, his gaze toward the decorative ceiling, not on the lawyer who is arguing. Occasionally, he will lean forward, approaching his microphone and putting reporters on alert that he might break his silence.

Almost always, it's just a feint.

But on the phone, he's had questions for every lawyer, although he went out of order Wednesday because of temporary technical difficulties. Justice Sonia Sotomayor and Stephen Breyer have also had trouble un-muting. And the new, orderly format has changed courtroom dynamics beyond technical challenges, reports CNN:

The format ensures that lawyers, and the public listening in, know who is speaking (as announced by Roberts) but offers limited opportunity for particular points to be hashed out. When the nine are in the courtroom, justices often swiftly counter assertions by a fellow justice and turn the argument around, to the advantage of one side over another and their own interest. Justice Elena Kagan on Wednesday tried to pin down a lawyer challenging an Affordable Care Act policy that requires employers to provide contraceptive insurance coverage. But her line of inquiry related to the breadth of his objections, tracing to religious grounds, was halted mid-response because of the clock. Roberts turned to Justice Neil Gorsuch, a conservative often on the other side of liberal Kagan's position, who was next in line.

It also presents challenges for non-justices:

Lawyers have fretted about the inability to see the justices' faces and read their demeanor. That's the same for journalists and others listening in. No longer may clues be gleaned from an expression of doubt as a justice leans forward from the bench. It is hard to know whether the justices have been satisfied by a lawyer's response or whether they might be budging in ideologically charged cases that typically split the five conservatives and four liberals.

But phoning in has some upsides. In another time, Justice Ruth Bader Ginsburg arranged her medical care around the court's schedule so she wouldn't miss arguments.

On Wednesday, Ms. Ginsburg was able to participate from a Baltimore hospital, where she was being treated for an infection. It's an unforeseen option after the court's virus-driven decision to hold remote arguments. Ms. Ginsburg was back home Wednesday night.

When Ginsburg was receiving treatment following cancer surgery in 1999, she followed advice from the first woman on the court, Justice Sandra Day O'Connor, who was back in court nine days after surgery.

“Ruth, you schedule your chemotherapy for a Friday. Then you can get over it on Saturday and Sunday and be back in court on Monday,” Ms. Ginsburg said last year, quoting Ms. O'Connor, at a Clinton Foundation event in Little Rock, Arkansas.

This story was reported by The Associated Press. 

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