Monday, May 24, 2021
One of the "surprises" of the Supreme Court's remote telephonic arguments is Justice Clarence Thomas's participation. In the latest issue of The Journal of Appellate Practice & Process, Timothy Johnson, Maron Sorenson, Maggie Cleary, and Katie Szarkowicz share their research findings on Justice Thomas's oral argument participation. Specifically, they explore whether Justice Thomas's increased participation can be attributed to the changed format of Supreme Court arguments or some other explanation.
There is a lot to enjoy in this article. I found the authors' parsing of Justice Blackmun's personal notes about Justice Thomas to be very interesting. It seems that from the beginning of Justice Thomas's tenure on the Court, Justice Blackmun took notice of when Justice Thomas spoke at argument. The authors' provide some of Justice Thomas's own reasons for his silence, and they discuss other scholarly discussions of Justice Thomas's silence on the bench.
Then, the authors delve into detailed research on the different times that Justice Thomas has asked questions at oral argument. They look at both the volume of participation and the types of cases, postulating that Justice Thomas's participation in oral argument often occurs in certain types of cases. But, as their research shows, it was really the change in argument format that led to the biggest change.
Many suspect that the Court will return to in-person arguments for the October 2021 Term, which features several blockbuster cases. It will be interesting to see if any of the structure from the telephonic arguments remains and, if it doesn't, does Justice Thomas resume his silence on the bench.