It was an historic, if somewhat confused moment at the U.S. Supreme Court on Monday morning: Justice Clarence Thomas spoke during an oral argument, the first time he has done so in nearly seven years. But it was only a brief aside that came during banter among the justices, and it was difficult for spectators to hear.
Thomas last asked a question during oral argument on February 22, 2006, even as — or partly because — the rest of the court has gotten more talkative than ever. Thomas does speak from the bench when announcing an opinion he has written, but never during the intense questioning of oral advocates.
When asked why, Thomas has offered several explanations for his silence, including his desire to let the lawyers talk, and his childhood experience speaking a dialect in Georgia, which made him reticent to speak in public.
Thomas’ comment Monday appeared spontaneous, and seemed to have been triggered by another aspect of his personal history: his alma mater Yale Law School, with which Thomas has a complicated relationship. For years before and after joining the high court in 1991, Thomas had little positive to say about Yale, and he dismissed the importance of his Yale degree. Its value was diminished, he said, because he was pegged — or stigmatized — as someone who had been admitted only because of Yale’s affirmative action program. In the last few years, there has been a rapprochement between Thomas and Yale, with the justice making several friendly visits to speak with students and faculty.
Yale and its rival Harvard Law School came up Monday during arguments in the case of Boyer v. Louisiana, which involved appointed counsel in a Louisiana capital case. The lawyer for Jonathan Boyer had argued that the state violated speedy trial requirements when it did not supply Boyer adequate legal defense because of funding problems.
When Carla Sigler, the lawyer representing Louisiana, defended the state’s actions, Justice Antonin Scalia pointed out that at times, state-appointed counsel had been provided to Boyer. Among them, he said sarcastically, were lawyers who had degrees from Harvard and Yale — as if to say that those degrees meant automatically that they were competent.
That is where the cross-talk began, and Thomas leaned forward to speak into the microphone. Some startled listeners thought he said “or incompetent” — or something similar — in a joshing tone responding to Scalia. Sigler said, also with a smile, “I would refute that, Justice Thomas.” Justice Sonia Sotomayor also chimed in, wondering lightheartedly whether the definition of constitutionally adequate counsel was “anyone who’s graduated from Harvard or Yale?”
The court’s unofficial transcript does not report Thomas’s comment in that way, and efforts are ongoing to clarify exactly what he did say.
Tony Mauro is the U.S. Supreme Court correspondent for The National Law Journal, a Legal affiliate based in New York. This article first appeared on The BLT: The Blog of Legal Times. •