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Justice Thomas's Vow of Silence Began 10 Years Ago Today

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By Casey C. Sullivan, Esq. on February 22, 2016 11:58 AM

It's been exactly ten years, 3,652 days, and about 800 oral arguments since Justice Thomas last asked a question from the Supreme Court bench. The justice's last active participation in an oral argument was February 22nd, 2006, according to The New York Times.

What's behind Justice Thomas's unbreakable vow of silence and is there any chance we'll hear from him in the future?

The Silent Justice

When it comes to Supreme Court oral arguments, Justice Breyer is the most vociferous, averaging 821 words per oral argument, more than 200 words ahead the second most talkative justice, Justice Roberts, according to FiveThirtyEight. Justice Sotomayor is the justice most inclined to interrupt others, while Justice Scalia got the most laughs of any justice.

But when it comes to Thomas, he's known primarily for his silence. It's true that the justice does announce his opinions from the bench about eight times a year. And he once made a joke during oral arguments -- something so rare that it made headlines even in Luxembourg. But Justice Thomas hasn't seriously engaged in oral arguments, at least not verbally, for a decade as of today.

Thomas has given a variety of reasons for his silence, as Adam Liptak recently recounted in the Times. There is not wanting to look like "Family Feud," an explanation he gave in 2000. In 2013, Justice Thomas took issue with the barrage of questioning lawyers face during oral arguments. "I think it's unnecessary in deciding cases to ask that many questions, and I don't think it's helpful," he said. "I think we should listen to lawyers who are arguing their cases, and we should allow the advocates to advocate."

Why go through that whole charade when "most of the work is done in the briefs?"

The Value of a Supreme Court Voice

To a certain extent, Justice Thomas is absolutely correct. Many people have taken issue with the constant interruptions and nonstop questioning that characterize modern oral arguments. Others have noted that these public spectacles rarely have much impact on a decision. Justice Breyer, the chattiest justice, told Stephen Colbert last fall that oral arguments account for only about five percent of the basis for deciding a case.

But oral arguments also allow the justices to engage with each other and the public, to advance their philosophy and, sometimes, even share their unique perspectives.

Thomas has done that before, more than a decade ago. Liptak points out his comments during a 2002 case on cross burning, describing his childhood experiences under the Ku Klux Klan's "reign of terror," as one such instance. There could be more in the future, should Justice Thomas open his mouth. But we don't expect that to happen anytime soon.

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