Clarence Thomas the Questioner

by Aaron Nielson — Tuesday, Nov. 1, 2016@Aaron_L_Nielson

Here is a bit of trivia: Did you know that Justice Clarence Thomas once spent nearly 10 minutes asking questions during a single session of oral argument? It’s true–in NASA v. FLRA, argued in 1999. The case concerned the role of agency inspector generals. Thomas, of course, headed a federal agency, and so knows how inspector generals operate. Indeed, David Frederick, who argued the case and wrote about it afterwards, has explained:

Justice Clarence Thomas, for example, has said that the reason he does not often ask questions at oral argument is because he wants to hear from counsel and because the other justices jump in to ask the questions he wants to have answered, so there is no need for him also to be active at oral argument. When the other justices do not ask questions, however, Justice Thomas will put his questions to counsel. In NASA v. FLRA, for example, Justice Thomas produced what is his longest recorded, uninterrupted colloquy with counsel in over 10 years as a member of the Supreme Court. It lasted nearly 10 minutes, and may well have been occasioned by lack of experience of any other justice as the head of an executive branch agency that had to deal with an Inspector General under the Inspector General Act of 1978, as had Justice Thomas when he chaired the U.S. Equal Employment Opportunity Commission.

Here is another bit of trivia: Did you know that this Saturday (November 5, 2016) will mark the 25th anniversary of Justice Thomas’s first question at oral argument as a Supreme Court justice? It’s also true. That case (Collins v. City of Harker Heights), which concerned whether the Due Process Clause itself imposes a duty to provide minimum levels of workplace safety, prompted this question from Thomas: “Would it change your analysis, Mr. Powe, if Mr. Collins were a city prisoner, required to clean the sewers?” And then this: “But where’s the constitutional right?”

Why I am sharing this trivia? Because I’m pleased to announce my latest essay (co-authored with RonNell Andersen Jones): Clarence Thomas the Questioner. Working closely with the good folks at Oyez and in collaboration with the D.C. Circuit and the Federal Records Center, we have attempted to collect every available question that Clarence Thomas has ever asked as a federal judge.* Our essay will be published in the Northwestern Law Review (first online and then in print).

Reviewing that collection of questions, we advance a surprising claim: Justice Thomas should ask more questions at oral argument not for any of the reasons that have been given before, but instead because he is very good at it. Thomas is known for silence, even though he writes more than anyone else. But he could and should be known for the quality of his questions. In particular, when he does ask questions, he exemplifies a number of model behaviors: He pays careful attention to the facts, tests boundaries of proposed rules, is polite to counsel, knows the statute well, offers powerful insights from his own experiences, and speaks plainly in an effort to be a team player. In short, when Thomas asks questions, he does so in a way that is respectful to the parties and his colleagues. Judges everywhere can learn lessons from him.

Anyway, download the essay while its hot.

* We could not have done this without extraordinary assistance from the BYU Law Library and a small army of research assistants. Many, many thanks.

Cite As: Author Name, Title, 36 Yale J. on Reg.: Notice & Comment (date), URL.

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About Aaron Nielson

Professor Nielson is an associate professor at Brigham Young University Law School. Before joining the academy, Professor Nielson was a partner in the Washington, D.C. office of Kirkland & Ellis LLP (where he remains of counsel). He also has served as a law clerk to Justice Samuel A. Alito, Jr. of the U.S. Supreme Court, Judge Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit, and Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit. All views expressed are the author's alone. Follow him on Twitter @Aaron_L_Nielson.

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