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Thomas Keeps Asking Questions as Justices Return to Courtroom (1)

Oct. 5, 2021, 5:16 PMUpdated: Oct. 5, 2021, 7:47 PM

Justice Clarence Thomas has asked the first question in all four oral arguments so far this term, a notable turnabout for someone who once stayed quiet on the bench for more than a decade.

Thomas’ more engaged role during oral arguments comes as the justices returned to the courtroom this week after a remote change in format in which he also participated more frequently. Instead of a free-for-all system, where justices jump in as they please, they took turns asking questions in order of seniority.

He hasn’t stopped now that the court has switched to a hybrid format in the new term with justices free to jump in and then get a chance to pose questions by seniority later in the argument.

In asking the first question, Thomas, who is now the court’s senior associate justice, is assuming a role frequently played by the late Justice Ruth Bader Ginsburg during her time on the bench.

“He’s been quite a great leader in asking questions to try to get the advocates to play out some of the parts of the arguments where there might be more tension for the court to explore,” said Jennifer Mascott, a George Mason University law professor and former Thomas clerk, who noted that several justices have jumped in to follow up on a question from her former boss.

Hotter Bench

Thomas, 73, will mark the 30th anniversary of joining the court later this month. When he joined the court, there wasn’t such a “hot bench,” Mascott said, meaning that the justices didn’t ask as many questions as they do now.

Prior to the pandemic, Thomas explained that he thought his colleagues came to ask too many questions, leaving the advocates little time to deliver their arguments.

Even then, he wasn’t unengaged on the bench, Mascott said. Observers watching closely could see him interact privately with then-neighbor on the bench Justice Stephen Breyer, she said. He just wasn’t “part of the fray of interrupting and speaking over people,” she said.

As the second-most senior justice, Thomas frequently asked questions under the new format during the pandemic. It was unclear, however, whether those questions would continue when the court returned Monday to in-person arguments for the start of the 2021 term.

Thomas hasn’t waited for the follow-up round to jump in this week.

“If you were writing on a clean slate, how would you coordinate” the two rules at issue in the habeas case Brown v. Davenport that the justices heard Tuesday. He continued to actively question each of the other three advocates that argued on the second day of the term.

More Order

Mascott said his eagerness to speak is consistent with his earlier emphasis on the importance of letting the advocate get a chance to speak and “for the justices and the advocates to listen to one another.”

“Now that there’s more of an order, he’s speaking up and has questions,” Mascott said.

The court is hearing in-person arguments with a limited audience, consisting only of law clerks and a handful of journalists. Only Justice Brett Kavanaugh, who tested positive for Covid-19, was not in the courtroom. He participated in the arguments remotely.

The court will hear five other arguments during its October sitting, including the case of the Boston Marathon bomber on Oct. 13.

(Updates with comments from Jennifer Mascott starting in fifth paragraph.)

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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