September 30, 2022

Judge Thomas made the new pleading format a winner


Judge Thomas asks lawyer Sheri Lynn Johnson a question during oral argument in 2019. This was one of the few times Thomas has spoken in oral argument before the remote argument format during the pandemic. (Art link)

The Supreme Court has not yet announced whether it will return to normal operations when the 2021-2022 term begins in October. This article is the last entry of a symposium on how the coronavirus pandemic has changed the court – and which of those changes are worth keeping.

Carrie Severino is President of the Judicial Crisis Network and served as a law clerk for Judge Clarence Thomas.

When Justice Clarence Thomas joined the Supreme Court 30 years ago, the court heard twice as many cases as it does today. Oral argument also had a radically different dynamic. An entire day of argument could go by – which at the time could mean both morning and afternoon – without the judges asking questions. While there were certainly aggressive questioners on the bench at the time, a good number of judges took a more sober approach with lawyers.

Judge Harry Blackmun, who befriended Thomas during their straddling field service, was particularly unhappy with interruptions from his more chatty colleagues and was even known to take notes showing the number of questions they asked. Perhaps a shared sense of courtroom decorum was a factor in the warm relationship between these ideological opposites.

Since that time Supreme Court lawyers have had to adjust to a hot bench in which judges often interrupted lawyers in the middle of their sentences. In the last few years before the pandemic, the norm has become eight of the judges asking at least one question during a typical oral argument. Thomas was the exception. His reluctance towards the judiciary, which was not so noticeable at the start of his tenure, has become a hallmark of court observers. At one point, justice spent more than a decade without asking any substantive questions on the bench, and it made the headlines when he broke his silence.

Thomas Explain his general approach to advocacy in 2012:

[Attorneys] have 30, 40 minutes per side for matters that are important to them and to the country. They should argue. It’s part of the process. … I don’t like to harass people. They are not children. Traditionally, the court did not do this. I have been there for 20 years. I don’t see the need for all of this. Most of them are in the brief, and there are a few questions in the margins.

On a personal note, he added, “Maybe that’s the Southerner in me. Maybe it’s the introvert in me, I don’t know. I think when someone is talking, someone should be listening.

Thomas wasn’t the only one who felt the pace of questions from the judges got out of hand. The court adopted a “two-minute rule” for the 2019-2020 mandate which allowed lawyers to start arguments for two minutes without being interrupted by a judge. But two weeks have not passed in court Sonia sotomayor broke the rule and others would do the same thereafter.

Of course, Thomas is anything but a silent judge in the most substantial aspect of his work. He is a particularly prolific jurist who, even if he was not to serve another day, has already carved his place in the pantheon of Supreme Court justices for his original case law. Over the past five years he has consistently written more opinions than any of his colleagues.

After the pandemic struck and the court adopted a new format of taking turns soliciting questions from each judge by teleconference – and, significantly, making it accessible via live streaming – this allowed the great audience to hear Thomas as the curious judge his colleagues and forensic scientists know behind closed doors. When the court launched the new format for two weeks in May 2020, Thomas request a total of 63 questions. Seventeen of them came in a day in which the tribunal heard cases involving numerous subpoenas for President Donald Trump’s financial records, and they included several probing questions on implicit legislative powers that the lawyer had difficulty answering.

Joseph Palmore, who served as Deputy Solicitor General under President Barack Obama, called Thomas’ participation the “biggest positive of the session,” adding: “He is a knowledgeable and serious questioner, and his colleagues often echoed his questions. to put. follow-ups. Thomas remained a passionate questioner until the next term, almost always using the time allotted to it. It flourished in a structured format precisely for the orderly presentation of questions by judges.

Echoing other senior Supreme Court attorneys, Gregory Garre, who served as Solicitor General under President George W. Bush, called justice an “excellent questioner” whose questions “are clear, fair and focused. resolving the heart of the dispute in court, not tangential issues. He added, “Often his questions have a practical element, testing the real ramifications of a party’s position. He doesn’t try to lay any traps. or to debate academic issues.

This was evident during the pleadings in California v. Texas on how the elimination of the Obamacare penalty involved standing. Thomas asked among other questions,

I guess in most places there is no penalty for [not] wear a face mask or mask during COVID, but there is a certain degree of stigma if not worn in certain settings. What if someone violates this command? Let’s say it’s in similar terms to the warrant here but no penalty. Would they have standing to challenge the mandate to wear a mask?

With Thomas finished, Judge Stephen Breyer began, “Well, I’m going to follow up on Judge Thomas’ question. “

It remains to be seen whether the tribunal will simply revert to its traditional advocacy format over the next term or adopt similar changes to what we saw during the pandemic. But one thing is clear: The questioning format used during the oral arguments of the pandemic period had the wonderful advantage of allowing for insightful and probative questions from Thomas.

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