Dellinger: Carter, I think you've argued starting further back than any of the rest of us. Is the Court much more active now than prior Courts? This is a change, isn't it?No one ever accused Brennan, Marshall, or Burger of a lack of intelligence simply because they didn't ask many questions at oral argument.
Phillips: It's a vast sea change and it started, obviously, when Justice Scalia replaced [Warren] Burger. When I argued in 1981, you could pretty much bet you weren't going to get any questions from Justice [William] Brennan [Jr.], and you might get one question from Justice [Thurgood] Marshall. Justice Blackmun would ask a question that you weren't always sure you were quite ready for because you could never quite understand necessarily what the purpose of the question was, although I think he usually had one. And my old boss, Chief Justice Burger, very rarely asked one. I don't think he ever asked me a question at all in the years that I argued there.
Instead, in a Q&A session that was televised in 2000, Thomas told some high school students the real reasons why he does not often speak up at oral arguments:
There's no reason to add to the volume. I also believe strongly, unless I want an answer, I don't ask things. I don't ask for entertainment, I don't ask to give people a hard time.Justice Thomas offered similar explanations in a 2000 meeting with law students:
I have some very active colleagues who like to ask questions. Usually, if you wait long enough, someone will ask your question.
The other thing, I was on that other side of the podium before, in my earlier life, and it's hard to stand up by yourself and to have judges who are going to rule on your case ask you tough questions. I don't want to give them a hard time.
But I'm going to give you a more personal reason, and I think this is probably the first time I ever even told anybody about it. How old are you? You're 16. When I was 16, I was sitting as the only black kid in my class, and I had grown up speaking a kind of a dialect. It's called Geechee. Some people call it Gullah now, and people praise it now. But they used to make fun of us back then. It's not standard English. When I transferred to an all-white school at your age, I was self-conscious, like we all are. It's like if we get pimples at 16, or we grow six inches and we're taller than everybody else, or our feet grow or something; we get self-conscious. And the problem was that I would correct myself midsentence. I was trying to speak standard English. I was thinking in standard English but speaking another language. So I learned that — I just started developing the habit of listening. And it just got to be — I didn't ask questions in college or law school. And I found that I could learn better just listening. And if I have a question I could ask it later.
For all those reasons, and a few others, I just think that it's more in my nature to listen rather than to ask a bunch of questions. And they get asked anyway. The only reason I could see for asking the questions is to let people know I've got something to ask. That's not a legitimate reason in the Supreme Court of the United States.
Justice Thomas said that the press has criticized Justice Antonin Scalia for asking questions during oral arguments before the Court. Some journalists have called Justice Scalia argumentative. Some of those same journalists have criticized Justice Thomas for not asking questions during oral arguments. He said, "I think if we invite a person in, we should at least listen to what he has to say." In words that sounded close to what I'd once heard from a Catholic priest, he said that you should really listen if you are listening to a person. If you are thinking of your next question as the person is speaking, some of your attention is not on listening to the person.More recently, Jan Crawford Greenburg interviewed Thomas, and asked why he doesn't speak more often at oral argument. Among other things, he said:
He further explained that he had not asked questions in high school, in college, or in law school. "When I was asked a question, I answered it, but I did not ask questions." He explained that he had grown up in a rural area in the South where there remained a major influence of an African language. As he grew up, many in that area spoke a mixture of English and this old language. As a consequence, while he learned to speak standard English-only, he would edit his speech and his words in his brain before speaking. This encouraged him to do more listening than speaking.
THOMAS: I think when people are invited in to make their case, we should listen. It's not a debate society. This is not a seminar.
And when I first came on the Court, there were far fewer questions, and there were so many more opportunities to have a conversation with a lawyer, not the sort of family feud type environment that we have now.
I think that that's not as productive as actually having a conversation, and I do think it's important that we listen to people. You know, I think it's wonderful, what a great country. You can have a case, you can come all the way to the Supreme Court, and you can say your piece.
There are times I've gone across the country, and I'll meet a small town lawyer who says, "You know, I was up at your Court and they never let me say what I wanted to say."
That isn't what I want to hear. I prefer to hear, "I made it all the way to Court and I got to tell you what I really thought."
Now, it may not change my mind, it may not change my colleagues' minds, but you have the satisfaction of having come and said your piece, and I think we should listen.
(Is that why you generally save your questions, when you ask them, until the end?)
THOMAS: Well, usually, there's such a seamless series of questions that you can't get in unless you elbow your way in, and I don't think that's necessary. I don't think we need all those questions, and I think it's unseemly to have to elbow my way in, interrupt counsel or interrupt my colleagues to get a question in.