COVID-19 AND SUPREME COURT ORAL ARGUMENT: THE CURIOUS CASE OF JUSTICE CLARENCE THOMAS.

• Author: Johnson, Timothy R.

The Court will hear oral arguments by telephone conference on May 4, 5, 6, 11, 12, and 13 in a limited number of previously postponed cases.... The Chief Justice will call the first case, and he will acknowledge the first counsel to argue.... At the end of this time, the Chief Justice will have the opportunity to ask questions. When his initial questioning is complete, the Associate Justices will then have the opportunity to ask questions in turn in order of seniority. (1) There is no question that the COVID-19 pandemic has touched nearly every aspect of American political institutions. The White House Press Corps created a rotating schedule to ensure only every third briefing room seat was occupied, (2) several states expanded absentee and mail-in balloting, (3) then-presidential candidate Joseph R. Biden, Jr. held a livestreamed town hall meeting about the pandemic, (4) and the House of Representatives cast votes remotely for the first time in its 233-year history. (5) Each of these changes was adopted with varying degrees of acceptance and success, (6) but one thing is certain: there is no immediate end in sight to this pandemic.

An institution notoriously reticent (sometimes even hostile) to change, the U.S. Supreme Court was also forced to make institutional adjustments due to the pandemic. On March 16 and April 3 of 2020, the Court issued press releases postponing its normally scheduled oral arguments due to the pandemic. (7) Just ten days later, it announced it would forego in-person arguments and proceed via telephone conference for thirteen of its final 2019 term cases. (8) Further details of the telephonic sessions--including procedures for joining the conference call and changes to norms of how the proceedings would be conducted--were made available in the April 28 press release, excerpted above. This seemingly mundane announcement marked the most substantial change to the Court's oral argument process in half a century. (9) Indeed, the Court purported to hear arguments by phone, the Justices would take turns asking questions in order of seniority, and the arguments would be livestreamed to the public for the first time in its history. (10)

While it was initially unclear how these changes would impact oral argument sessions, Court watchers focused a fair amount of attention on whether the new procedures would lead Associate Justice Clarence Thomas to participate. (11) Indeed, the (in)famously taciturn Justice is not known for speaking during arguments, doing so in just 39 of approximately 2,200 orally argued cases heard in his twenty-eight years on the bench. But given the new, take-turns format, the question was whether Thomas would participate when the Court convened via telephone on May 4, 2020. Those who tuned in for the livestreamed session found their answer quickly: when called upon by Chief Justice John Roberts, only six minutes and five seconds into the day's first case, Thomas took his turn, starting with, "Yes, Ms. Ross--a couple of questions" (emphasis added). (12) All told, Thomas spoke multiple times in every one of the ten telephonic arguments that culminated the Court's 2019 term. (13)

Such a startling change in judicial behavior leads us to two interrelated research questions: is Thomas' increased participation due solely to the telephonic format, or do other explanations account for his behavior? In asking these questions, we specifically move away from media accounts of his participation, which focus on his silent streaks or speculate on reasons why he breaks such streaks. (14) In Section I, we delineate several accounts of his silence on the bench, including observations by his colleague Justice Harry A. Blackmun; how the media picked up on his silence; Thomas' own observations about this phenomenon; and, finally, what scholars have said about it. In Section II, we analyze empirically Thomas' silence prior to and during the pandemic. In Section III, we provide a multivariate analysis to explain when he is most likely to speak during an argument session. In Section IV, we provide data on the impact Thomas has had on oral argument sessions when he does speak. Section V concludes with a summary and discussion of our findings and some thoughts on how we may expect Thomas to act if, post-pandemic, the Court moves back to traditional arguments.

1. ORAL ARGUMENT AND JUSTICE CLARENCE THOMAS:

   A CASE OF SILENCE

   1. Justice Harry A. Blackmun Takes Note

      It was not immediately evident that, during his career, Thomas would speak so little during oral argument sessions. However, little escaped the attention of fellow Justice Harry A. Blackmun. Indeed, Blackmun is perhaps as well-known for the meticulous notes he took during the Court's decision-making process as he is for the famous (and sometimes infamous) opinions he authored. (15) During oral argument, Blackmun regularly predicted how he thought his colleagues would vote, noted questions and comments made by other Justices, rated the attorneys' arguments, and even kept detailed physical descriptions of the lawyers who argued. (16) Subsequent scholarship demonstrated the utility of Blackmun's notes, as he clearly used them as more than just a way to pass the time. (17)

      Blackmun also kept track of when he believed his colleagues were monopolizing the proceedings by asking too many questions. (18) In fact, he noted his annoyance with such behavior on 141 separate occasions. (19) In Freeman v. Pitts, (20) for example, he complained: "?s--K too many." (21) Similarly, in Eastman Kodak Company v. Image Technical Services, Inc., (22) Blackmun wrote "Scalia again," (23) annoyed that the junior Justice spoke for roughly six minutes--or one-tenth of the sixty minutes usually allotted for the Justices to hear arguments.

      Our point is this: even prior to Thomas' appointment, Blackmun not only paid attention to what his colleagues said, but also noted how much they had to say. (24) Given this attention to detail, it is unsurprising that he also memorialized Thomas' very first oral argument utterance. Indeed, dated November 5, 1991-just Thomas' second day on the bench--Blackmun's notes in Collins v. City of Harker Heights (25) include the shorthand phrase: "T asks his 1st?." (26) In the months and years to come, Blackmun made a particular habit of singling out Thomas to note his oral argument behavior, including comments such as "T asks a ?," (27) and "T asks a ? again." (28)

      These handwritten references to Thomas end, however, after the 1992 term because, according to Court records and our data, Thomas did not speak during the entire 1993 term--Blackmun's last on the bench. Thomas did, however, speak in seven and eight cases, respectively, during his first two terms (1991 and 1992), setting a record for participation he would not break until May 2020. Of these fifteen cases in which Thomas spoke before Blackmun's retirement, Blackmun took note six times. (29) His comments range from Cincinnati v. Discovery Network, (30) where he wrote, "T asks his 1st ? o t Fall" (31) to "T!" (32) to, in the second-to-last case of the term, "CT asks a ?!!" (33)

      In just two terms observing his oral argument behavior, it was clear Blackmun had come to characterize Thomas as a generally silent colleague who rarely spoke. And, when Thomas did speak, Blackmun was quick to excitedly memorialize the phenomenon. The question is whether others would notice Thomas' behavior. It is to that question we now turn.

   2. The Media Pick up on Blackmun's Insights

      While Blackmun had a penchant for following Thomas' peculiar oral argument behavior, the media was not so fast to catch on. Although recent coverage of Thomas is saturated with stories about his silence, the media didn't first report on this aspect of his judicial behavior until 1993-his third term. In a broad piece, focused mostly on activities outside the Court, Neil A. Lewis framed Thomas' non-participation as part of a more general retreat from public life following the media circus covering his nomination and subsequent sexual harassment allegations against him. (34) Specifically, Lewis noted Thomas' complete silence during a sexual harassment case, adding, "Although he was outspoken when he served on the United States Circuit Court of Appeals for the District of Columbia, Justice Thomas has been the most reticent member of the Court. In fact, he rarely speaks at all." (35)

      This account appears to be the only media acknowledgement of Thomas' silence during his early years on the bench; the reason why is intuitive. Although he did not speak as much as his other colleagues, there were no long-term gaps between cases when Thomas spoke. As the data we outline below indicate, with the exception of 1993, he spoke at least once per term from 1991 to 1999. (36) Thus, though his behavior was certainly unusual compared to his colleagues, it was not newsworthy enough to generate extensive coverage. In fact, it appears there are no news articles dedicated specifically to his reserved courtroom demeanor during his first few years on the bench. Even Lewis's nod to Thomas' virtual silence was buried in an article focused on, what was assumed to be, Thomas' prolonged response to his controversial confirmation hearing.

      It was not until 2011-when Thomas had been silent for half a decade--that the media, writ large, began to focus on his lack of questions and comments. Newspapers, radio, and television outlets all analyzed what his silence meant and when, or whether, he would ever speak again. (37) In addition, debates between legal experts appeared in major newspapers about whether Thomas' behavior was good or bad for him and the Court or whether it mattered at all. (38)

      Two years later the media again brought Thomas' behavior to the fore when, in Boyer v. Louisiana, (39) he broke a seven-year silent streak with a joke about Yale, his law school alma mater. (40) Despite less-than-clear audio, the fact that Thomas' voice was even...