D.C. Circuit Review – Reviewed: Justice Clarence Thomas’s Top 25 Oral Arguments

by Aaron Nielson — Saturday, Nov. 5, 2016@Aaron_L_Nielson

Today is an important anniversary: 25 years ago, on November 5, 1991, Justice Clarence Thomas asked his first question as a member of the U.S. Supreme Court.

Earlier this week, I posted an essay I co-authored with RonNell Andersen Jones that collects and analyzes his questions. Today, I’ll use D.C. Circuit Review – Reviewed to list Justice Clarence Thomas’s Top 25 oral arguments. I’m doing this for three reasons: (1) Thomas is one of the most important alums of the D.C. Circuit; (2) one of the questions comes from Judge Thomas (I think) back when he was on the D.C. Circuit; and (3) this was a quiet week at the D.C. Circuit.* As an added bonus, I’ll include links to Oyez so you can listen for yourself. You’re welcome.

So here we go — let’s count down his top 25. (Note: my selection process was not scientific. I tried to pick questions that seem important or that capture an aspect of Justice Thomas’s personality or jurisprudence.)

25. Holmes v. South Carolina, 547 U.S. 319 (2006): Justice Thomas wanted clarification about the record, asking “isn’t it more accurate that the trial court actually found that the evidence met the Gregory standard?” Thomas then read from the trial court’s opinion — thereby casting doubt on the lawyer’s answer. (Trust me, the questions get better.)

24. HUD v. Rucker, 535 U.S. 125 (2002): The argument addressed whether public housing officials could evict tenants for drug-related activity of non-tenant relatives. Justice Thomas wanted to know just “how big a problem [such drug abuse was] in this housing authority?”

23. Miller v. Johnson, 515 U.S. 900 (1995): Justice Thomas posed a hypothetical in which the Democratic Georgia legislature, fearful that the state “is becoming increasingly Republican,” decides for purely political reasons to create districts with loyal Democratic voters who happen to be black. He then asked, “What is wrong with that?”

22. Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377 (2000): In this campaign finance case, Thomas asked: “Can you now simply say that because money corrupts, we are going to limit the amount of money that can be charged by these organizations to run the political ads, not their editorials, not their news articles, but the amount they charge for the ads themselves? [Answer: No, I don’t believe that you can.] Why? What’s the distinction? What’s the difference between limiting the amount that I can contribute to my candidate, and limiting the amount that an organization charges to run an ad of mine?”

21. United States v. Drayton, 536 U.S. 194 (2002): The Justice asked this question: “Ms. Spivey, is there anything in the record about what the innocent people actually felt when the police officers came on the bus?”

20. Apprendi v. New Jersey, 530 U.S. 466 (2000): This is a big case. And Justice Thomas made this important point: “The difficulty I have is that nowhere have we defined what the distinction is between an element of the offense and an enhancement factor, and if you could do that in your few minutes it would be very helpful.”

19. Boggs v. Boggs, 520 U.S. 833 (1997): I’m not going to tell you what this case is about, but here is Justice Thomas’s question: “Suppose he decided to go to the river boats and just feed the slot machines.” Interested? Give the argument a listen!

18. Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753 (1995): This one probably is more important than its No. 18 ranking would suggest, but there is some overlap with it and the argument in the No. 1 slot, so I put it here: “I hate to interrupt you, but I’d like to ask just a couple of questions, if I may. You say that this is a religious symbol. What is the religion of the [Ku Klux] Klan?” (Thomas asks a lot of questions in this argument.)

17. United States v. Chesapeake & Potomac Tel. Co., 516 U.S. 415 (1996): This First Amendment argument contains a punchy question by Justice Thomas: “Are cable companies competitive with each other, or are they equally in the monopoly position, and are we just talking about monopolists versus monopolists?”

16. Arave v. Creech, 507 U.S. 463 (1993): This argument concerned capital punishment. Justice Thomas asked: “Didn’t the trial judge or the sentencing judge also find that even though the victim provoked the altercation, he went on to find that with the victim’s attack as an excuse the defendant’s murder then took on the many, took on many aspects of an assassination?”

15. United States v. Fordice, 505 U.S. 717 (1992): This one is tricky to explain. But here is a sample: “So your argument then would have been that 20 years ago you had freedom of choice?”

14. Gratz v. Bollinger, 539 U.S. 244 (2003): In this high-profile case, Justice Thomas asked: “About 10 terms ago, we had the University of Mississippi higher ed. case in here … and the argument was made that the historically–the HBCs provided a different benefit to minorities. Would the same arguments with respect to diversity apply to those institutions?”

13. Georgia v. Randolph, 547 U.S. 103 (2006): Justice Thomas proposed a simple resolution to a sticky Fourth Amendment problem: “Is this case materially different if she simply ran upstairs, grabbed the straw, brought it down, and handed it to the police officer? It’s, in effect, the same thing, isn’t it?”

12. Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001): Here, Justice Thomas asked a tough hypothetical: “Let’s assume that it can be demonstrated that eating regularly at fast food joints, including McDonald’s, causes health problems throughout life for kids. Would you give me the principle in your reasoning that would prevent the State of Massachusetts from similarly restricting advertising by McDonald’s?”

11. Nat’l Treasury Employees Union v. United States, 927 F.2d 1253 (D.C. Cir. 1991) [the argument is not generally available, but here are a few pages of the transcript]: This argument wasn’t at the Supreme Court at all — it was in the D.C. Circuit, before Judges Mikva, Sentelle, and Thomas. And, to be sure, it is not 100% clear that Judge Thomas was speaking. Even so, I’ve decided to include this one because it is remarkably difficult to obtain D.C. Circuit transcripts from 1991 (if you want to know why, read the essay), and because the question sounds like Thomas’s style. An unnamed judge asked: “Suppose the employer, or Congress, passed a law that said no moonlighting. Constitutional problems?” Judge Thomas wrote the opinion.

10. United States v. Nat’l Treasury Employees Union, 513 U.S. 454 (1995): This argument is somewhat related to the one just listed. It also concerns moonlighting by federal employees. Justice Thomas asked: “Would you have a First Amendment problem with a total ban on moonlighting?” (There are a lot of questions here.)

9. Smith v. United States, 508 U.S. 223 (1993): Justice Thomas addressed the “use” of a gun: “Let’s assume that your client was successful and was not arrested and a friend approached him the next day and asked him what happened to his Mack 10 [sic]. Could he reasonably respond ‘I used it to obtain cocaine?’” Expanding his hypothetical, Thomas asked if a carpenter “traded his hammer for the board, and he was asked what happened to his hammer, and . . . he said I used it to obtain this board, would one reasonably think that he used it to hammer someone’s head to obtain the board?” (I’m wary of Supreme Court jokes, but Thomas got a laugh for that one.)

8. Pa. Dep’t of Corrs. v. Yeskey, 524 U.S. 206 (1998): This case — involving disability discrimination in the prison context — allowed Justice Thomas to call on his EEOC background: “Well, let’s say … this individual can prove that claustrophobia is my disability, and let’s say this person has a history of claustrophobia as a disability, and the… as soon as he’s sentenced by the judge he says, I have claustrophobia. Now, how do you accommodate that?”

7. Robinson v. Shell Oil Co., 519 U.S. 337 (1997): This case — involving former employees — also allowed Justice Thomas to address discrimination: “How often do you give references in discharge cases?” He followed up by asking whether an employer could really say, “Look, you file a charge against me, and I will see to it that you will never work in this business again”?

6. Voisine v. United States, 136 S. Ct. 2272 (2016): This argument, of course, is the most recent one on this list. Justice Thomas broke a ten year streak of no questions. And he asked a lot of questions, including whether counsel could identify “another area where a misdemeanor violation suspends a constitutional right.”

5. Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384 (1993): This oral argument is high on the list because it includes this great line (which sounds like the set-up of a joke): “Let’s say it’s an atheist and an agnostic debating one minister.” Thomas asks a number of interesting questions here.

4. Collins v. City of Harker Heights, 503 U.S. 115 (1992): This oral argument was on November 5, 1991 — the first day that Justice Thomas asked a question. For that reason alone, it comes in at number four. More than that, however, the questions gave a hint about Thomas’s jurisprudence. The case concerns whether the Due Process Clause imposes a duty to provide minimum levels of safety to employees. Thomas inquired whether it would change the analysis if, rather than being a city employee, the worker had been a “city prisoner required to clean the sewers?” And then this: “But where’s the underlying constitutional right?” Now that’s a Thomas question.

3. Burlington N. R.R. v. Ford, 504 U.S. 648 (1992): This oral argument — concerning venue — is fascinating, because it may have (cryptically) given a hint into Justice Thomas’s constitutional vision: “Did you consider arguing that this venue statute violated the [C]ommerce [C]lause?”

2. NASA v. FLRA, 527 U.S. 229 (1999): This is the longest set of Justice Thomas questions — it covers nearly ten minutes. Among his many questions, he asked if counsel was aware of “any instance where … an [Inspector General] has been directed by an agency head to conduct an audit or an investigation in a certain way?” And then Thomas summed up his view: “If the Administrator can’t direct the IG to do precisely what [the Administrator thinks] the IG should be doing, then I don’t know how you can say that the IG reports to the Administrator.”

1. Virginia v. Black, 538 U.S. 343 (2003): This is Justice Thomas’s most memorable set of questions. He responded to a characterization of the burning cross’s symbolism by asking, “aren’t you understating the effects of the burning cross?” He then explained that “we had almost 100 years of lynching and activity in the South by the Knights of Camellia and the Ku Klux Klan, and this was a reign of terror, and the cross was a symbol of that reign of terror…. [I]t was intended to have a virulent effect…. [I]t is unlike any symbol in our society.”

You know, I think that this is a pretty interesting list of oral argument questions. And there are more questions where these came from. Read the essay: Clarence Thomas the Questioner.

* The D.C. Circuit decided three cases this week. In NCR v. NLRB, Judge Rogers (joined by Judges Tatel and Edwards) sided in favor of the agency in an interesting case involving late-received ballots: “The Board’s interpretation, based on the balancing of conflicting interests in affording employees the broadest participation in election proceedings while still protecting against ‘delay and uncertainty’ is consistent with its precedent. It furthers an election process that allows the parties potentially to begin collective bargaining the day after the ballots are counted. NCR’s interpretation could shift the balance of interests chosen by the Board.” In United States v. Philip Morris USA Inc., Judge Tatel (joined by Judges Edwards and Sentelle) rejected a challenge to a decision ordering various tobacco companies to “televise ‘corrective statements’ about the dangers of smoking.” The order was entered long ago and the Court declined to reopen the judgment. (There is a lot of interesting Rule 60(b) law.) And in Ramsey v. United States Parole Commission, Judge Henderson (joined by Judges Millett and Sentelle) addressed these questions: “What if the parolee breaks the rules? More specifically, what happens if he commits a new offense?” And then the Court gave this answer: “In the federal system, the United States Parole Commission (Commission) can revoke the offender’s parole and order that he serve all or some of the remaining sentence in prison. The Commission can also retrospectively deny him credit for the time he has served on parole—his ‘street time’—so that his remaining sentence is the same as it was when he was released on parole. These general principles guide our resolution of Charles Ramsey’s appeal.”


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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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