By Mike Dorf (Updated with addendum at the end)
In my latest FindLaw column, I use the occasion of a recent University of Florida Law School speech by Justice Clarence Thomas as an occasion for talking about the "noble lie" of formalism in the law. Here I want to raise a largely unrelated issue: Why does Justice Thomas almost never ask questions from the bench?
During the Q&A session, he gave what I thought at first was a joking answer in response to a question of what a lawyer can say to convince him that the lawyer's client should win the case. Justice Thomas said that it would help "if my colleagues would let me talk." I took the line to be a joke because, of course, his colleagues do "let" him talk; he simply chooses not to talk in the vast majority of cases. The usual question is why not.
Based on my admittedly unscientific methods, I think that by far the most common hypothesis among people at least loosely familiar with the Court's work is that Justice Thomas doesn't ask questions because he doesn't want to embarrass himself as not up to the job. A close second is that he's nervous talking in public. Yet the evidence of the University of Florida speech pretty clearly rules both of these hypotheses out. Regardless of how well prepared he was for the job when the first President Bush nominated him in 1991, nearly two decades on the bench have obviously brought Justice Thomas up to speed. That's evident in his opinions but also in the speech itself, in which he displayed a level of comfort with a wide range of doctrines and issues. Surely he would be able to ask probing questions of lawyers in most cases.
So, is it possible that he doesn't have any questions? That seems unlikely too. Even acknowledging that, as the most conservative member of the Court,Justice Thomas finds fewer cases difficult than many of his colleagues do, at least half of the cases the Court decides do not have a clear ideological valence and raise hard legal questions. One would expect questions from Justice Thomas in these cases from time to time, if for no other reason than to relieve boredom.
Thus, although I'm not fully satisfied with this explanation, I fall back on the possibility that Justice Thomas wasn't joking, or at least wasn't entirely joking: Perhaps he really feels like his colleagues won't let him get a word in edgewise. That's not quite as outlandish as it may sound, given the unstructured nature of oral argument questioning, in which there is no queue. I consider myself anything but shy; yet I quite dislike going on the sort of television or radio program in which there is no moderator telling me when it's my turn but I must instead jump in and cut someone else off. Call it politeness, perhaps, or something else, but I think it's worth wondering whether a somewhat different format--in which the justices took turns asking questions, say--might produce a much more loquacious Justice Thomas.
Update: I received an email from Prof Lance McMillan of John Marshall Law School, who reminded me that on prior occasions (including in his book and in a speech last fall) Justice Thomas has said that he thinks judges should do more listening and less questioning, or "debating" with the lawyers. Justice Thomas contrasted oral arguments before the Supreme Court with the oral arguments he had as a lawyer for Missouri early in his career, in which the bench allowed the lawyers more time to talk. For Justice Thomas, this is part of a broader theme of civility.
I must say that I find this explanation not fully satisfactory. Justice Powell was also a Southern gentleman but he asked his share of questions at oral argument. Now perhaps the difference is that Powell mostly served in an era of less questioning, and less aggressive questioning (i.e., the pre-Scalia era) and so Justice Thomas feels that given the current level and nature of questioning, there's simply no room to add his questions. I think that could explain a certain degree of reticence but to my mind it doesn't explain complete silence for case after case.