Justice Clarence Thomas breaks his silence in court

Adam Liptak / New York Times News Service /

WASHINGTON — One of the abiding mysteries at the Supreme Court is why Justice Clarence Thomas has failed to say a word in almost seven years of arguments. On Monday, when he finally broke his silence, the mystery was replaced by a riddle: Just what did Thomas say?

The justices were considering the qualifications of a death penalty defense lawyer in Louisiana, and Justice Antonin Scalia noted that she had graduated from Yale Law School, which is Thomas’ alma mater.

Thomas leaned into his microphone, and in the midst of a great deal of cross talk among the justices, cracked a joke. Or so it seemed in the court.

The court transcript confirms that Thomas spoke, for the first time since Feb 22, 2006. It attributes these words to him, after a follow-up comment from Scalia concerning a male graduate of Harvard Law School: “Well — he did not —.”

Although the transcription is incomplete, some people in the courtroom understood him to say, in a joshing tone, that a law degree from Yale could actually be proof of incompetence or ineffectiveness.

Others thought that he might have been referring to Harvard.

What follows in the transcript supports the view that Thomas made an actual point. First, there is a notation indicating laughter in the courtroom. The stray words attributed to Thomas are in no sense a joke or any other occasion for laughter.

And the lawyer at the lectern, a Louisiana prosecutor named Carla Sigler, responded, “I would refute that, Justice Thomas,” indicating that he had articulated a proposition capable of refutation.

Sigler had earlier said that the Yale lawyer, Christine Lehmann, was “a very impressive attorney.”

Justice Sonia Sotomayor, another Yale Law graduate, pressed Sigler about whether a fancy degree by itself proved anything.

“Counsel,” she said, “do you want to define constitutionally adequate counsel? Is it anybody who’s graduated from Harvard and Yale?”

There was more laughter.

“Or even just passed the bar?” Sigler responded with a cryptic remark about her own alma mater, Louisiana State University. “Or LSU Law,” she said.

It is not unusual for Thomas to banter with the members of the court who sit next to him, Scalia and Justice Stephen Breyer. But those communications are inaudible in the courtroom. This remark seemed meant for public consumption.

Thomas has offered various reasons for his general taciturnity. He has said, for instance, that he is self-conscious about the way he speaks and has recalled being teased about the dialect he grew up speaking in rural Georgia.

In his 2007 memoir, “My Grandfather’s Son,” he wrote that he never asked questions in college or law school and that he was intimidated by some of his fellow students.

At other times, he has said that he is silent out of simple courtesy. He has also complained about the difficulty of getting a word in edgewise on an exceptionally voluble bench.

“We look like ‘Family Feud,’” he told a bar group in 2000 in Richmond, Va.

Political scientists who study the court say it has been more than 40 years since a justice went an entire term, much less seven years, without saying a word at oral arguments.

There is room for debate about whether one aspect of Thomas’ record still stands. A joke is not a question, and it may fairly be said that he has still not asked a question for almost seven years.

The joke itself seemed good-natured, and it was made funnier by Yale Law School’s reputation. While by some measure it is the best law school in the nation, it is also known for intellectual abstraction and disdain for the actual practice of law.

The joke was also probably evidence of a recent warming trend between Thomas and the law school, from which he graduated in 1974.

In his memoir, Thomas wrote that he had “peeled a 15-cent price sticker off a package of cigars and stuck it on the frame of my law degree to remind myself of the mistake I’d made by going to Yale.”

“I never did change my mind about its value,” he wrote, and for many years he refused to return to New Haven, Conn.

But Thomas visited in 2011 and spoke to an alumni group in Washington last year.

In remarks at a Washington synagogue in December, Justice Elena Kagan, a former dean of Harvard Law School, said she is often asked, “Why don’t any Supreme Court justices come from any law school except Harvard or Yale?” Like Thomas and Sotomayor, Justice Samuel Alito attended Yale. The six others — Chief Justice John Roberts and Justices Breyer, Kagan, Scalia, Anthony Kennedy and Ruth Bader Ginsburg — all attended Harvard.

But Kagan added an asterisk to the credentials of one of her colleagues.

“Justice Ginsburg spent one year at Columbia,” Kagan said. “You know, slumming it.”

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