Justice Clarence Thomas, now 72, is not the oldest member of the U.S. Supreme Court, but he is the one with the most seniority. The far-right justice was appointed by the late President George H.W. Bush in 1991, when Thomas replaced Justice Thurgood Marshall. And New York Times reporter Adam Liptak, in an article published on May 3, explains why the COVID-19 pandemic has made Thomas more talkative than he has been in the past.
"Justice Thomas' switch from monkish silence to gregarious engagement is a byproduct of the pandemic, during which the Court has heard arguments by telephone," Liptak explains. "The justices now ask questions one at a time, in order of seniority."
Justice John Roberts, appointed by President George W. Bush, asks questions first because he is chief justice — and Thomas goes after the chief justice because he has the most seniority. Thomas is the only justice left on the High Court who was appointed by a pre-Bill Clinton president.
Liptak notes, "In the telephone arguments, he asked tough questions of both sides and almost always used his allotted few minutes. The idiosyncratic legal views that characterize his frequent concurring and dissenting opinions were largely absent from his questioning, which was measured and straight-forward."
Gregory G. Garre, who served as solicitor general under President George W. Bush, said of Thomas' questions, "His questions are clear, fair and focused on resolving the heart of the dispute before the Court, not tangential issues. Often, his questions have a practical element to them, testing the real-world ramifications of a party's position. He's not trying to set traps or debate academic issues."
When the U.S. Senate confirmed Thomas to the Supreme Court in 1991, it was a game-changer — and not one that liberals and progressives were happy about. That year, Marshall, who had been appointed by President Lyndon B. Johnson in 1967, announced his retirement. Marshall was the High Court's first Black justice, and civil rights leaders were hoping that President George H.W. Bush would nominate another African-American — which he did. But while Marshall, who died in 1993, was a liberal, Thomas is a far-right social conservative along the lines of the late Justice Antonin Scalia. And Thomas often had major disagreements not only with the liberals on the Court — including the late Justice Ruth Bader Ginsburg — but also, with the retired Justice Anthony Kennedy, a Reagan appointee who was fiscally conservative in his rulings but was a libertarian on gay rights and other social issues.