Clarence Thomas' Surprise Questions Suggest Supreme Court's Balance of Power Is Shifting

Supreme Court Associate Justice Clarence Thomas surprised many observers this week by asking the first question of the new term during oral arguments in a case where the state of Mississippi is suing Tennessee over a ground water dispute.

Thomas is the most senior associate justice on the court but since his appointment in 1991, he has become famous for staying quiet during oral arguments and rarely asking questions.

This was not the case when the Supreme Court began hearing cases for the 2021/2022 term on Monday, as the justice jumped in to ask counsel for Mississippi a question at the beginning of the period of rapid-fire questioning.

Thomas' surprising move comes at a time when the Supreme Court has moved further to the right following the appointment of Associate Justice Amy Coney Barrett in 2020 and the waning influence of Chief Justice John Roberts.

Analysis of the 2020/2021 term from SCOTUSblog published on July 2 showed that Roberts is no longer the court's ideological median—meaning he was not the justice who was in the majority most often during that term.

Roberts has been supplanted by Associate Justice Brett Kavanaugh, who was in the majority for 95 percent of cases where the justices were divided. This may be attributed to Barrett's presence on the court shoring up the conservative majority.

When the court had a 5-4 majority, Roberts was considered the swing vote and often sided with the four liberal justices in key cases, including in two rulings upholding the Affordable Care Act (ACA), also known as Obamacare.

However, now that the court has a 6-3 conservative majority, Roberts' influence has waned. He found himself in the minority when the court's five other conservatives voted not to grant a stay of a controversial Texas abortion ban.

Thomas was in the majority, along with Barrett and the three other conservative associate justices. The evident shift in the court's balance of power appears to have made Thomas an even more influential figure.

As the most senior conservative in what appears to be a strong five-person bloc, Thomas could now be viewed as the conservatives' intellectual leader. This unofficial status could encourage him to be more vocal in oral arguments.

During those arguments, the Supreme Court justices ask counsel questions in quick succession, where any justice can jump in and there are often interruptions. Thomas is known to dislike this form of questioning and often remains silent during it.

When the court's sittings were forced to go virtual during the COVID-19 pandemic, a new system of questioning was introduced where justices asked questions in order of seniority. Thomas participated in this in the same way as fellow justices.

Now that in-person hearings have resumed, the court is using a mixed method: the rapid-fire questioning first followed by individual questions from the justices. However, Thomas did not wait for the second round of questions on Monday and jumped in at the very begin of the rapid-fire session and continued to ask counsel for Mississippi questions after his first one.

Clarence Thomas Poses for a Photo
U.S. Supreme Court Associate Justice Clarence Thomas sits for an official photo with other members of the U.S. Supreme Court in the Supreme Court in Washington, D.C., June 1, 2017. Thomas has been surprising vocal during oral arguments so far this term. SAUL LOEB/AFP/Getty Images