Justice Clarence Thomas was sworn in to the Supreme Court on Oct. 22, 1991, and for the rest of the '90s could be counted on to chime in a few times a year (or every other year) with questions to the parties presenting their cases before him. But by the early 2000s, the questions had slowed to the point that the lawyers appearing before -- and other justices sitting on -- the late-era Rehnquist Court had little reason to expect to engage with Thomas during oral argument.
The birth of the Roberts Court brought new hope. Three times during the 2005-06 term, Thomas leaned forward and, instead of reaching for a brief per his ordinary routine, he turned on his microphone and made his concerns known. These contributions, although paltry relative to those of his colleagues, constituted an inquisitorial deluge compared to the silence streak Thomas has maintained ever since.
On Nov. 8, 2005, about a month after Chief Justice John Roberts joined the Court, Thomas broke what was then his longest stretch of quiet to telegraph his thoughts in Georgia v. Randolph. Deputy Solicitor General Michael Dreeben -- who seems to be Thomas' streak-breaking target of choice -- had been taking a drubbing from Justices John Paul Stevens, Sandra Day O'Connor, Anthony Kennedy and Ruth Bader Ginsburg over his argument that police officers may search a home when one resident has consented and the other has objected. Toward the end of Dreeben's argument, Thomas spoke up to help him out.
Thomas' interjection suggested that the facts of this case -- Mrs. Randolph's allowing a police officer to search the house for cocaine paraphernalia despite Mr. Randolph's refusal -- were no different than the facts of an earlier Supreme Court decision endorsing a wife's pointing police to evidence that incriminated her husband. And when Thomas Goldstein, the lawyer for Mr. Randolph, tried to say that the facts of the two cases were actually quite different, Thomas jumped in to preserve his analogy.
Not a month later, in Rice v. Collins, Thomas came in again at the end of an argument. Lawyer Mark Drozdowski was arguing for prisoner Steven Collins that his sentence should be thrown out because the prosecutor, despite giving a race-neutral reason for removing a black woman from the jury, had actually struck her on the basis of her race.
Drozdowski pointed out that the prosecutor had unconstitutionally cited gender as her reason for striking the other black woman from the juror pool. Together, the removal of those two jurors revealed a pattern of constitutional violations, he said. During one of Justice Kennedy's questions, Thomas, who sat next to Kennedy at the time, can be heard muttering (presumably to Justice Stephen Breyer, his longtime whisper-mate), "I don't understand those two together."
A few moments later, Thomas asked if the prosecutor's race should "make any difference" in the Court's analysis of the case. Drozdowski said that the prosecutor's race should make no difference, implying that just as the prosecutor in this case, a female, might unconstitutionally strike female jurors based on gender stereotypes, so might a black prosecutor remove black jurors based on racial stereotypes.
Thomas' question in Rice may have served to remove his confusion about Drozdowski's grouping of the two jurors together, but it didn't change his -- or his colleagues' -- ultimate determination. They upheld Collins' sentence by a unanimous vote.
At the end of January 2006, Justice Samuel Alito joined the Court. Three weeks later, he also had the good fortune of hearing a question from Thomas. In Holmes v. South Carolina, the Court considered the constitutionality of a South Carolina Supreme Court ruling that prevented Bobby Lee Holmes, a convicted rapist and murderer of an 86-year-old woman, from introducing evidence that another person may have committed the crimes. Holmes' lawyer argued that the South Carolina court had mangled its own precedent in holding that Holmes' evidence was inadmissible. Thomas at oral argument seemed to disagree.
Nevertheless, Thomas registered no dissent several months later when Alito, writing his first opinion, announced the Court's unanimous judgment in favor of Holmes. But this may not mean that Thomas' question was simply academic: It's the Court's custom for the justices all to line up behind a new justice's debut decision.
Thomas ignored that custom in 2009 when he issued a separate concurrence to Justice Sonia Sotomayor's first opinion -- although he didn't go so far as to dissent, which Justice Antonin Scalia did when Justice Elena Kagan first wrote for the Court. And because Thomas has not spoken at oral argument since shortly after Alito joined the Court, Sotomayor and Kagan, like the rest of us, have to settle for old audio recordings to hear him question from the bench.
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