Thomas and Oral Argument

Justice Thomas is known for his silence on the bench, and he’s talked over the years about why he rarely asks questions. He has explained that he thinks his colleagues talk too much and that he’d rather let the lawyers have their say. When he does ask questions, it’s almost always at the end of an argument, when it becomes clear his point wasn’t going to be otherwise addressed.

In recent interviews at the Court, Thomas explained that he pretty much makes up his mind about a case before oral argument--after he's read the briefs, the opinions below and the record. Arguments, he says, are “really not a critical part of the process” and are “almost an afterthought.”

I'd asked him how he approaches a case. Here's what he had to say.

THOMAS: There's a way that we do business and it is very methodical, and it's something that I've done over the past 16 years.

I have four law clerks.  We work through the case, as I read the briefs, I read what they've written, I read all of the cases underlying, the court of appeals, the district court. There might be something from the magistrate judge or the bankruptcy judge. You read the record.

And then we sit and we discuss it, that's with my law clerks. So by the time I go on the bench, we have an outline of our thinking on the case. So I know what I think without having heard argument or anything else. Argument is really not a critical part of the process, the oral argument. 

The real work is in the documents, the submissions that we get from counsel.  And when you do your work in going through that, it makes the oral argument sort of almost an afterthought.

(So is that why you don’t ask questions?)

THOMAS: I think when people are invited in to make their case, we should listen. It's not a debate society. This is not a seminar.

And when I first came on the Court, there were far fewer questions, and there were so many more opportunities to have a conversation with a lawyer, not the sort of family feud type environment that we have now.

I think that that's not as productive as actually having a conversation, and I do think it's important that we listen to people.  You know, I think it's wonderful, what a great country.  You can have a case, you can come all the way to the Supreme Court, and you can say your piece.

There are times I've gone across the country, and I'll meet a small town lawyer who says, "You know, I was up at your Court and they never let me say what I wanted to say." 

That isn't what I want to hear. I prefer to hear, "I made it all the way to Court and I got to tell you what I really thought." 

Now, it may not change my mind, it may not change my colleagues' minds, but you have the satisfaction of having come and said your piece, and I think we should listen.

(Is that why you generally save your questions, when you ask them, until the end?)

THOMAS: Well, usually, there's such a seamless series of questions that you can't get in unless you elbow your way in, and I don't think that's necessary.  I don't think we need all those questions, and I think it's unseemly to have to elbow my way in, interrupt counsel or interrupt my colleagues to get a question in.

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