Thursday, December 11, 2003


Justice Thomas is often criticized for rarely asking questions at oral arguments. It is less often noted that many other Justices have historically been silent at oral argument, and that the real oddity is that 8 of the current Justices are so loquacious. In a panel discussion last year (just drawn to my attention via Southern Appeal), Carter Phillips, one of the nation's most experienced Supreme Court advocates, had this to say in response to a question from former Solicitor General Walter Dellinger:
Dellinger: Carter, I think you've argued starting further back than any of the rest of us. Is the Court much more active now than prior Courts? This is a change, isn't it?

Phillips: It's a vast sea change and it started, obviously, when Justice Scalia replaced [Warren] Burger. When I argued in 1981, you could pretty much bet you weren't going to get any questions from Justice [William] Brennan [Jr.], and you might get one question from Justice [Thurgood] Marshall. Justice Blackmun would ask a question that you weren't always sure you were quite ready for because you could never quite understand necessarily what the purpose of the question was, although I think he usually had one. And my old boss, Chief Justice Burger, very rarely asked one. I don't think he ever asked me a question at all in the years that I argued there.


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