Justice Clarence Thomas

Two Supreme Court watchers got into a bit of a tit-for-tat this week on the eighth anniversary since Justice Clarence Thomas last asked a question from the bench.

Jeffrey Toobin opined that Thomas' famous habit of not asking questions during oral arguments is "disgraceful" because "they are, in fact, the public's only windows onto the Justices' thought processes, and they offer the litigants and their lawyers their only chance to look thse arbiters in the eye and make their case."

Then Adam Liptak wrote that "the real work of the Supreme Court is done in written opinions, and there Justice Thomas has laid out a consistent and closely argued vision."

Most interesting to me in all of this is Liptak's analysis of how Thomas might treat stare decisis in a case that could shape the future of securities class actions. At issue is the viability of the "fraud on the market" theory and the presumption that a company's stock price reflects all important publicly available information. If the case gets overturned, then securities class actions will likely be extinct.

The defendants argue the precedent in the case deserves less adherence because it involves "'largely a procedural and evidentiary construct.'" Liptak closes his piece with the comment that "we will have to wait until the court decides the case, probably in June, to see how just how weak [Thomas'] 'affinity for stare decisis' is."