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Wednesday, October 13, 2021

Justice Thomas?

Justice Thomas has asked the first question in the open-question period for all sides in every case this Term. Is this intentional and where is it coming from? There was a lot of talk about Thomas asking more questions under the orderly questioning from last Term's remote arguments. But he has carried it the normal format* and the rest of the Court seems to defer to him at the outset of aeguments.

[*] Which seem less Wild West than pre-pandemic. The Justices talk over one another less often, the Chief does not have to play traffic cop, the Justices interrupt less, and attorneys have more time to respond to questions.

I remember reading a lot of arguments in the late-'90s and it felt as if Justice O'Connor asked the first in many cases. It was a gut reaction and I never attempted to measure it. Here is is clear and I am wondering why.

Update: According to Justice Sotomayor at NYU, the Justices agreed to interrupt less and give each other space in response to the Jacobi studies. Although the goal was to interrupt women Justices less often, the side effect was drawing more engagement from Thomas. Still not sure where the "you go first" deference comes from. Anyway, I wonder if this will cause the Chief to acknowledge that some legal scholarship benefits the Court, beyond stuff about Kant and 18th-century Bulgaria.

Posted by Howard Wasserman on October 13, 2021 at 03:41 PM in Howard Wasserman, Judicial Process | Permalink


Justice Thomas asking the first question is driving Lyle Denniston (veteran SCOTUS reporter, now retired) a bit crazy.

On Twitter: "still baffled why J. Thomas got to ask 1st ques. in regular time in 8 or the 9; what's that about?"

The answer, without some inside cluing us in somehow, is a matter of supposition. I would reasonably guess Justice Thomas found the phone system where they took terms to his liking. He went second there after Roberts & Roberts could have agreed to let him to go first.

Justice Thomas has complained about the rough give/take of the questioning. This provides him a chance to ask the questions without needing to butt in.

And, yes, the questioning does seem more orderly so far. That also was probably by agreement. Thomas asking his questions seems to me to help provide an appearance of each member of the Supreme Court engaging and doing so in a business like fashion. That helps the Court's image.

Of course, again, this is supposition on my part.

Posted by: Joe | Oct 13, 2021 4:21:08 PM

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