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The Law Blogger is a law-related blog that informs and discusses current matters of legal interest to readers of The Oakland Press and to consumers of legal services in the community. We hope readers will  find it entertaining but also informative. The Law Blogger does not, however, impart legal advice, as only attorneys are licensed to provide legal counsel.
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Friday, April 1, 2016

Justice Thomas Speaks-Up During Gun Argument

As appellate lawyers, we here at the Law Blogger appreciate the importance of solid cogent and logical oral argument. Oral arguments are the opportunity for the lawyers, after filing briefs, to explain their case to the panel of judges.

As SCOTUS watchers, we have noted that conservative Justice Clarence Thomas, since his appointment by George H. W. Bush in 1991, has rarely posed questions to the lawyers during argument. His decade-long stretch of silence was broken during oral argument last month on a Second Amendment case.

Not only did Justice Thomas break his silence, he posed a series of questions to the lawyers on a case that posed the question whether a misdemeanor domestic violence conviction should bar someone from the possession of a firearm for the rest of their life.  The last time Justice Thomas posed a question from the bench, it was February 2006 in a death penalty argument.

Justice Thomas has stated his reasons for not pipping-up from the bench. He believes many lines of questioning during oral argument are inappropriate; adding nothing to the substantive issues of the case and being more about a judge showcasing his or her own jurisprudential world view.

One high-profile justice, a good friend of Justice Thomas with a seat adjacent to his on the SCOTUS bench, the recently-departed Justice Antonin Scalia, reveled in questioning the lawyers during oral arguments. As a fellow conservative jurist, Scalia was the extrovert to Thomas' introvert.

Here in Michigan, many appellate practitioners are vocal about doing away with the oral argument tradition. The primary thrust of the argument is that it really does not add much to the decision-making process while consuming a disproportionate level of judicial and attorney resources.

The counterpoint is that oral argument presents the only opportunity for the judges deciding a case to question the lawyers about their reasoning and legal analysis; to better inform the judges about the case they are going to decide.

Having Justice Thomas ask a question is so rare, the event received front-page treatment on the NYT. His questions also spawned legal commentary about the efficacy of oral arguments in general; here is the link to the SCOTUSBlog post on the subject.

Post #533

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