Justice Thomas makes the new oral argument a winner


Justice Thomas asked attorney Sheri Lynn Johnson a question during an oral argument in 2019. This is one of the rare times when Thomas speaks in oral debates during the pandemic, before the remote debate format. (Art Lien)

The Supreme Court has not announced whether it will resume normal operations at the beginning of October 2021-22.This article is the last one forum About how the coronavirus pandemic has changed the courts — and which of these changes are worth keeping.

Carrie Severino is the president of the Judicial Crisis Network and the legal assistant to Justice Clarence Thomas.

When Justice Clarence Thomas joined the Supreme Court 30 years ago, the court heard twice as many cases as today. Oral arguments also have very different dynamics. A whole day of arguing may pass—at the time, it could mean morning and afternoon—and the judges would not ask any questions. Although there must be positive questioners on the bench at the time, many judges took a more restrained attitude towards lawyers.

Justice Harry Blackmond became friends with Thomas during his overlapping service in court, Very unhappy Interrupted by his more lengthy colleagues, even known for keeping track of how many questions they asked. Perhaps the common sense of court etiquette is a factor in the establishment of friendly relations between these ideological opposites.

Since then, defense lawyers of the Supreme Court have had to adapt to the fact that judges often interrupt lawyers in judgments. In the recent years before the pandemic, the norms became eight judges asking at least one question in a typical oral argument. Thomas is an exception. His taciturn on the bench was not so noticeable in the early days of his tenure, but it became a unique feature of stadium observers.For a time, justice More than ten years have passed No substantive questions were raised to the bench, which made headlines when he broke the silence.

Thomas explain His general method of oral arguments in 2012:

[Attorneys] Each side has 30 to 40 minutes to deal with cases that are important to them and the country. They should argue. This is part of the process. …I don’t like badgers. These are not children. Traditionally, courts would not do this. I have been there for 20 years. I don’t think all of these are needed. Most of the content is in the abstract, and there are still some problems at the edge.

Personally, he added: “Maybe this is the southerner in my heart. Maybe it’s my introvert, I don’t know. I think that when someone speaks, someone should listen.”

Thomas is not the only one who believes that the rhythm of the judge’s questions has been out of control.The court adopted a “Two-Minute Rule” During the 2019-20 term, lawyers can start a debate for two minutes without being interrupted by the judge.But two weeks have not passed before justice Sonia Sotomayor Broke the rules, and other Will do the same thing later.

Of course, in the most substantive aspect of his work, Thomas is by no means a silent justice. He is a particularly prolific jurist. Even if he cannot serve for another day, he has already won a place in the pantheon of Supreme Court justices because of his original precedents. In the past five years, he has written more opinions than any of his colleagues.

In the aftermath of the pandemic, the court adopted a new format where each judge took turns asking questions through a conference call — and, importantly, accessible via live broadcast — it allowed the public to hear Thomas as his colleague and The curious judge that the legal assistant knows behind closed doors.When the court took the lead in adopting the new format within two weeks in May 2020, Thomas ask A total of 63 questions.Seventeen of them tried extensive subpoena cases involving President Donald Trump’s financial records within one day, including several Exploratory Issues Concerning Implied Legislative Power That lawyer had a hard time answering.

Joseph Palmer, who served as the Assistant Attorney General under President Barack Obama, called Thomas’ participation “the biggest positive factor in the meeting” and added: “He is a skilled and substantive questioner, and his colleagues Often answer his questions to ask for follow-up actions.” Thomas remained an avid questioner during the next tenure. Almost always Use his allotted time. He thrived in a format designed for judges to ask questions in an orderly manner.

Echoing other senior Supreme Court advocates, Gregory Garry, who served as the attorney general under President George W. Bush, called the judge an “excellent questioner” and his questions were “clear, fair, and Focus on resolving the core of the dispute in court, “not the tangent problem. He added: “Usually, his questions are of practical significance to them and can test the influence of the political party’s position on the real world. He did not try to set traps or debate academic issues. “

This is obvious in oral arguments California v. Texas On how the cancellation of Obamacare’s penalties affect status. Thomas asked other questions,

I think there is no punishment in most places [not] Wear a mask or a mask during COVID, but if you don’t wear a mask in some cases, you will be condemned to a certain extent. What if someone violates the order? Suppose it is similar to the authorization terms here, but there are no penalties. Are they eligible to challenge the requirement to wear masks?

After Thomas was finished, Judge Stephen Breyer began to say: “Well, I will follow up on Judge Thomas’s question.”

It remains to be seen whether the court will simply resume its traditional form of oral arguments during the next term, or adopt changes similar to what we saw during the pandemic. But one thing is clear: the questioning format used in oral debates during the pandemic has great benefits, allowing Thomas to ask insightful and proving questions.

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