Tuesday, May 12, 2020

Telephonic arguments seem to suit Justice Thomas, more active than ever

Justice Clarence Thomas’s participation in oral arguments this term has been remarkable, and one of the most important consequences of the court’s teleconferencing experiment, wrote Tony Mauro wrote on the National Journal’s Supreme Court Brief.
A Wall Street Journal report found: "Before the telephonic arguments, Justice Thomas spoke in 32 of approximately 2,400 cases the court has heard since he succeeded Justice Thurgood Marshall in 1991, according to research by University of Minnesota political scientist Timothy Johnson. Justice Thomas’s questions took up 26 minutes over those 29 years, Mr. Johnson found. By comparison, he spoke for approximately 7½ minutes over four cases in the past week alone."
After decades when his argument questions were minimal or non-existent, Thomas has asked a slew of questions in the four days of teleconferencing thus far. Equally notable is the fact that advocates and justices alike have been making numerous references to Thomas’s questions during the arguments.
In the 92-minute argument in McGirt v. Oklahoma on Monday, Thomas asked five questions, and advocates and justices mentioned his questions seven times.
Court scholars RonNell Andersen Jones of the University of Utah S.J. Quinney College of Law and Aaron Nielson of Brigham Young University J. Reuben Clark Law School, studied Thomas’s questions in 2016, finding at that time that he had asked only 39 questions since joining the court in 1991.
In light of the latest arguments, the scholars updated their analysis in an article for The Hill titled, “Pandemic proves Justice Thomas does have something to say.”
“Justice Thomas finds the theatrics of contemporary oral argument inappropriate,” the authors wrote. But in the current “more orderly, decorous format,” Thomas has opened up.
Then and now, Andersen Jones said in an interview Monday, Thomas asks questions “in a way that appears calculated to be helpful—to the parties, to his fellow justices, and to the decision at hand.” She added, “It is an exponentially more interactive court as a whole, as Thomas adds himself to the mix and as the others find his questions useful and worthy of engagement.”
Will Thomas’s chattiness continue? “Whether this foray into telephonic questioning might embolden the Supreme Court’s most silent justice to continue to participate when the justices someday return to the courtroom remains to be seen,” Andersen Jones said.
Also uncertain is whether Thomas’s newly found voice will affect how he decides cases. But if his dissents have a somewhat reclusive, go-it-alone feel, then his collegial experiences at the latest arguments may change his tenor, if not his votes. 
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