Justice Clarence Thomas concurred with Tuesday's unanimous Supreme Court decision in Villarreal v. Texas but refused to join the majority opinion, arguing it "needlessly expands our precedents" on how trial judges may restrict communication between defendants and their attorneys during recesses.
The case centered on a straightforward question: how far can a trial judge go in limiting what a defendant and his lawyers discuss during a break in testimony? The Court answered unanimously, ruling against the defendant. But Thomas saw the majority reaching beyond what the case required, and he said so.
David Villarreal was defending himself against murder charges in Texas when his trial testimony was interrupted by a 24-hour overnight recess. The trial judge instructed Villarreal's attorneys not to "manage his testimony" during the break. The restriction was narrow. Villarreal's lawyers could still discuss other matters, including possible sentencing issues. They simply could not coach their client on the testimony he was in the middle of delivering.
Villarreal was ultimately convicted. His attorneys appealed, arguing that the trial judge's restrictions on communication violated his Sixth Amendment right to counsel. The case climbed its way to the Supreme Court. Fox News shares.
Justice Ketanji Brown Jackson penned the majority opinion, which stated that court precedent allowed judges to restrict attorneys and clients from discussing testimony in the middle of a trial. The Court ruled against Villarreal's argument. So far, so good.
Thomas agreed with the outcome. He did not agree with how the majority got there. His concurrence argued that the trial judge's original order was already consistent with existing precedent and that the majority's opinion introduced unnecessary new rules where none were needed.
"The trial judge's order here complied with our precedents."
Thomas laid out exactly what the trial judge had done. The judge instructed defense counsel not to "discuss what you couldn't discuss with [Villarreal] if he was on the stand in front of the jury," and explained that "you couldn't confer with him while he was on the stand about his testimony." That restriction tracked existing law. It was measured. It was specific.
The problem, in Thomas's view, was that the majority went further than the facts demanded. Rather than simply affirming the trial judge's order under existing precedent, the majority opinion purported to announce a new rule: that a defendant has a constitutional right to "discussion of testimony" so long as that discussion is "incidental to other topics," such as plea advice or strategy.
"I am unable to join the majority opinion because it unnecessarily expands these precedents. It purports to 'announce' a 'rule' under which a defendant has a constitutional right to 'discussion of testimony' so long as that discussion is 'incidental to other topics.'"
This is Thomas at his most consistent. He has spent decades warning the Court against doing more than a case requires, against the judicial habit of using narrow disputes as vehicles for broad pronouncements. A unanimous outcome masked a real disagreement about judicial restraint.
There is a meaningful difference between a court saying "this trial judge acted within established law" and a court saying "we are now announcing a new constitutional rule about when defendants can discuss testimony with their lawyers." The first resolves a case. The second creates precedent that will ripple through courtrooms for years.
Trial judges across the country manage testimony recesses every day. They make practical decisions about what attorneys and defendants can discuss, balancing the integrity of testimony against the right to counsel. Those judges now have a new "rule" to contend with, one that distinguishes between direct discussion of testimony and discussion that is merely "incidental" to it. That line is not as clean as it sounds. Defense attorneys will test it. Prosecutors will challenge it. And lower courts will have to sort out what "incidental" means in practice.
Thomas saw this coming. His objection was not about the outcome for Villarreal. It was about what the majority opinion will mean for the next case and the one after that.
Conservative jurisprudence has long held that courts should decide the case in front of them and resist the temptation to legislate from the bench. That principle applies even when the result is unanimous. Especially then. A unanimous decision carries enormous weight. When the entire Court agrees on an outcome, but the majority opinion sweeps more broadly than necessary, the new precedent arrives with the full force of nine justices behind it, even if the breadth was never truly contested.
Thomas's concurrence is a reminder that unanimity on the result does not mean unanimity on the reasoning. And reasoning is where law gets made.
The trial judge in Texas did his job. The Supreme Court could have simply said so. Thomas wanted to leave it there. The majority did not.
