Justice Clarence Thomas' Silence Unmatched for 40 Years

WASHINGTON, Feb. 22, 2011— -- Supreme Court Justice Clarence Thomas celebrated an unusual anniversary today: It's been five years since he's asked a question during oral arguments.

Over the years Thomas has read opinions from the bench, but the last time he spoke up spontaneously during an exchange among the justices and lawyers was in February 2006.

His silence during questioning has sparked debate among court watchers over whether a justice should participate in oral arguments.

Some say that the hearings are largely ceremonial, but others see the opportunity to engage in a public dialogue with lawyers on both sides of a case as a crucial tool for justices to try to persuade one another on a matter of law.

While the court does not have official rules mandating the role of each justice during oral arguments, tradition holds that participation is the norm.

"No single justice has gone even one full term without asking a question in the last 40 years," said Timothy R. Johnson, professor of political science at the University of Minnesota.

Johnson, who has studied the issue for an upcoming book, said that on average Justice Antonin Scalia is the most verbose of the justices, speaking about 27 times per argument session. Compare that to Justice Thomas, who speaks on average almost zero.

Thomas has said that he goes into the oral argument sessions knowing how he will decide, a case so he doesn't ask questions.

"So why do you beat up on people if you already know ... [the outcome of the case]? I don't know because I don't beat up on them. I refuse to participate. I don't like it, so I don't do it," he said in 2009, according to The Associated Press.

Although Thomas last spoke in 2006, his 2002 comments during oral arguments on a case about a law banning cross burning are perhaps those most remembered for the stir they created.

He told a government lawyer that he might be "understating the effects of the burning cross," which stunned those in the audience who were surprised to hear the justice speak up so passionately on the issue.

Thomas Silent During Questioning Since 2006

"Now, it's my understanding that we had almost 100 years of lynching and activity in the South by the Knights of Camellia and -- and the Ku Klux Klan, and this was a reign of terror and the cross was a symbol of that reign of terror. Was -- isn't that significantly greater than intimidation or a threat?" Thomas asked Justice Department lawyer Michael Dreeben.

"Well, I think they're co-extensive, Justice Thomas, because it is --" Dreeben replied before he was cut off.

"Well, my fear is, Mr. Dreeben, that you're actually understating the symbolism on -- of and the effect of the cross, the burning cross. I -- I indicated, I think, in the Ohio case that the cross was not a religious symbol and that it has -- it was intended to have a virulent effect. And I -- I think that what you're attempting to do is to fit this into our jurisprudence rather than stating more clearly what the cross was intended to accomplish and, indeed, that it is."

The audio of Thomas' questioning can be heard here.