Where were you on February 22, 2006? You probably don’t remember, but that auspicious date was the last time Supreme Court Justice Clarence Thomas said anything at all at an oral argument before the High Court. Supreme Court arguments are of course the most complex, high-level appellate advocacy in the country and probably the world. Almost all justices ask questions during just about every argument as they like to (a) put lawyers on the spot on their positions (b) make sure they understand the nuances of the arguments and that they have not overlooked or missed an important detail or fact; (c) test out their own theory of how they think the case should go or what it is about; and (d) are generally inquisitive and curious. To get through 7 years of oral arguments at the Court without saying a single word – never mind asking a question- is just plain weird.
So imagine the lawyers’ and indeed his fellow judges’ shock when Thomas finally deigned to open his mouth and say something as occurred in today’s oral argument in Boyer v. Louisiana The only problem is it was INAUDIBLE and no one is sure what he said exactly what he said. In the case, involving the death penalty, the state was arguing that its five-year failure to fund a lawyer for an indigent defendant did not undermine the defendant’s constitutional right to a speedy trial.
Before Thomas spoke, Justice Antonin Scalia was asking the state’s attorney about the competency and experience of the lawyers for the capital defendant. After learning that the lawyers went to Harvard and Yale law schools, Scalia said, “Son of a gun.” Then Thomas spoke and according to the transcript, said, “Well — he did not --,” followed by laughter. Louisiana’s lawyer then responded, “I would refute that, Justice Thomas.” That’s all the reporter was able to get. Seven years for a joke no one heard. Justice Sotomayor quickly brought everyone back to earth by reminding them that it was a very serious issue and that not all Harvard and Yale law graduates are competent to try capital cases.
Apparently, Justice Thomas was continuing his gripe against Yale Law School, his alma mater. He has repeatedly stated publicly that he felt his degree was devalued because he was accepted through affirmative action. In a 2007 interview with CBS’s “60 Minutes,” Thomas said, “I still have a 15¢ sticker on the frame of my law degree. It’s tainted, so I just leave it in the basement.” That in earlier years he and countless others may have been outrightly denied though qualified due to his color seems to escape him. In any event, even though the official audio of the argument is being released Friday, if the court reporter failed to hear it, chances are the audio will not capture his pearl of wisdom. If you want to see the entire transcript the link is below. Its a worthwhile read to see the interplay between justices and the lawyers to give you an example of how rare and odd it is for a judge not to ask a question during an oral argument (or certainly two or three arguments) and how bizarre it is not to ask a question or say a word during seven years of oral argument.