Extra Scrutiny: Before the Court

The Justices of the Supreme Court were not born wearing the black robes of the highest court in the United States. They were lawyers first. 

As lawyers, some of them were among the historically tiny fraction of American attorneys who have had the honor to argue before the Supreme Court. For a few of them, they had that honor more than a dozen times.

This episode of Extra Scrutiny focuses on five justices who argued cases as attorneys at the Supreme Court before they joined it. Four of them are still serving today.

Extra Scrutiny: The "Breyer Pages"

Justice Clarence Thomas is known for his silence on the bench during oral arguments at the U.S. Supreme Court. But Justice Stephen Breyer is known for the opposite: his incredible verbosity. He asks lots of questions, and sometimes those questions are quite...extended. He sometimes speaks uninterrupted for three or more minutes, not only posing complicated hypotheticals to the attorneys before him, but also sometimes just thinking out loud.

Law professor Josh Blackman actually tracks Breyer's longest questions. When Breyer speaks long enough to take up more than a page of a case's official oral argument transcript, Blackman adds it to an archive called the "Breyer Pages."

In this episode of Extra Scrutiny, we explore some of the record-setting Breyer Pages and discover the philosophical side of the current Court's most pragmatic member.

Extra Scrutiny: The "Silence" of Clarence Thomas

Clarence Thomas has always been a controversial figure on the Supreme Court. First it was his contentious confirmation hearings, during which he was accused of persistent sexual harassment, and the narrow vote by the Senate in which he was nearly rejected. Then it was his strict, conservative approach to the constitution as a member of the Court, with Thomas sometimes writing opinions so extreme none of his colleagues, not even fellow conservatives such as Antonin Scalia or William Rehnquist, were willing to join.

But over the last decade, something else about Justice Thomas has drawn criticism: his silence on the bench. As his colleagues routinely pepper attorneys with pointed, even combative questions during oral argument, Justice Thomas instead sits quietly, content not to interrupt or interject.

But not always. In this brief special episode of Heightened Scrutiny, you'll hear some of the rare moments when Justice Thomas has spoken up, sometimes with profound impact.

Sources referenced:

"In His Own Words: Justice Clarence Thomas," New York Times, Dec. 14, 2000.

Adam Liptak, "Justice Clarence Thomas Breaks His Silence in Court," New York Times, Jan. 14, 2013.

Jeffrey Toobin, "Clarence Thomas's Disgraceful Silence," New Yorker, Feb. 21, 2014.