Supreme Court Justice
Clarence Thomas

SCOTUS pundits are not expecting Justice Clarence Thomas to ask any questions during the balance of the Court's term, which ends in June.  And why should they?  Justice Thomas last asked a question during oral argument in a February 2006 death-penalty case; he's been silent ever since.

Rather than interact with the lawyers appearing before him, Justice Thomas has acquired the odd habits of slowly rotating in his leather chair in the famous courtroom, staring at the ceiling, examining his nails, while listening to the lawyers' oral arguments and the questions from his more engaged colleagues.  When I was sworn into the SCOTUS bench last term, I witnessed this peculiar behavior from the jurist first-hand.

In 1991, when President Bush (41) needed to replace the retiring Justice Thurgood Marshall, a giant on the High Court, he was looking for a conservatively-minded jurist.  Aside from those required credentials, President Bush had to select someone to follow Justice Marshall's distinguished tenure.  Before ascending to the SCOTUS bench, Marshall successfully argued the seminal Brown v Board of Education case, which abolished the "separate but equal" fallacy in the public school context.

Bush's short-list began and ended with Clarence Thomas, who had only very recently been appointed to the federal appellate bench for the D.C. circuit following a solid career in the EEOC during the Regan-era.  He had never argued a case before the SCOTUS.

But who could forget, on the other hand, how the sordid Anita Hill fiasco tarnished the selection process for the high court?  And what about last month's story about unpaid taxes on his joint return with his wife?   Well, never mind all that, as his is a job-for-life.

In noting Thomas' half-decade of "taking-up space" on the Court, Adam Liptak observed in the NYT:

His attitude toward oral arguments contrasts sharply with that of his colleagues, who seem to find questioning the lawyers who appear before them a valuable way to sharpen the issues in the case, probe weaknesses, consider consequences, correct misunderstandings and start a conversation among the justices that will continue in their private conferences.

As an appellate practitioner, that's exactly what you hope to get out of oral argument; that is how our common law is supposed to get forged.

Staying silent for so long sure seems like an ineffective way to occupy one of the more significant seats on the most storied bench in the land.

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