By Dr. Ken Broda-Bahm:
If a “hot bench” is one that involves a judge actively participating in oral argument with questions and responses, then a “cold bench” must be one in which the judge just sits silently and watches. By that standard, there is no better exemplar of the cold bench than U.S. Supreme Court Justice Clarence Thomas. It has now been eight years since Thomas has asked a question in oral arguments. He came close just last year in an attempted interruption of Justice Scalia, but all the official transcript picked up from Justice Thomas was “Well, he did not….” So, if the standard is that it has to be a complete thought, then the record stands. Over the last 40 years at least, there is no other record of a Supreme Court Justice holding their tongue for a single full term, and now Thomas has held his for the past seven terms. That has drawn a great deal of criticism from legal observers. Commentator Jeffrey Toobin, for example, notes that the Justice’s behavior has “gone from curious to bizarre to downright embarrassing.”
Within the Supreme Court’s oral arguments, of course, Thomas’s silence does not mean the bench is silent -- far from it with Scalia, Alito and the other six routinely hammering advocates with question after question during oral argument. Through the extensive oral arguments for the Affordable Care Act, for example, advocates enjoyed on average only 52 seconds of uninterrupted speech time before one judge or another cut in. And that setting has some advantages. While the Supremes and many other judges might have their minds mostly made up by the time they get to oral arguments, there is still a chance to shape the verdict through oral argument, and there is no better way to argue than to know exactly what your audience is thinking. So, what does the advocate do in a Judge Thomas-like situation, where justice watches but doesn't speak while you argue? In our view, the answer goes beyond just, “Say what you want to say and then stop.” Because we’ve written in the past on how to handle a hot bench and the Scalias of the world, this post will focus on how to handle a cold bench and the Thomas’s of the world.