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For first time in 10 years, Justice Clarence Thomas asks questions during an argument For first time in 10 years, Justice Clarence Thomas asks questions during an argument
(about 4 hours later)
Justice Clarence Thomas on Monday broke his 10-year streak of not asking questions during oral arguments, one of the public’s most enduring curiosities about the Supreme Court.Justice Clarence Thomas on Monday broke his 10-year streak of not asking questions during oral arguments, one of the public’s most enduring curiosities about the Supreme Court.
Thomas stunned the courtroom by speaking up during a low-profile case involving a federal law that bans people convicted of domestic violence from owning a gun. Thomas asked whether conviction for breaking any other law suspends a person’s constitutional rights. Thomas’s extensive questioning of a government lawyer in a relatively low-profile case stunned the courtroom and came just two weeks after the death of his closest ally on the court, Justice Antonin Scalia.
[The question of Clarence Thomas][The question of Clarence Thomas]
Thomas stopped Assistant Solicitor General Ilana H. Eisenstein just as she was about to stop presenting her case. His decision to speak now indicated that Thomas might be stepping up to replace the prominent voice of Scalia, an aggressive questioner and a dominant presence during arguments, the only time the public can see the court working on a case.
“Ms. Eisenstein, just one question,” Thomas said. The case involves a federal law that bans people convicted of domestic violence from owning a gun. The specific question was whether a misdemeanor domestic violence conviction based on “recklessness” was enough to trigger the ban on gun ownership.
“Can you give me — this is a misdemeanor violation. It suspends a constitutional right. Can you give me another area where a misdemeanor violation suspends a constitutional right?” Thomas and Scalia have lately upbraided their colleagues for not taking other cases that would clarify the extent of a Second Amendment right to individual gun ownership, which was established in an opinion Scalia wrote in a 2008 case called District of Columbia v. Heller.
Eisenstein replied that in implementing the gun ban, Congress relied on studies that showed that those who had previously battered their spouses “pose up to a six-fold greater risk of killing, by a gun, their family member.” [Scalia and Thomas object as court declines to review assault weapon ban]
Thomas then went on to ask a number of follow-up questions. When Thomas spoke, the questioning of Assistant Solicitor General Ilana H. Eisenstein was just winding down and she was about to take her seat.
“Ms. Eisenstein, just one question,” Thomas said. “Can you give me — this is a misdemeanor violation. It suspends a constitutional right. Can you give me another area where a misdemeanor violation suspends a constitutional right?”
When Eisenstein stumbled in her response, Thomas again pointed out that the case involves a “misdemeanor violation of domestic conduct that results in a lifetime ban on possession of a gun, which, at least as of now, is still a constitutional right.”
Eisenstein responded that Congress justified the ban because of studies that showed that those who had previously battered their spouses “pose up to a sixfold greater risk of killing, by a gun, their family member.”
Thomas then went on to ask a number of follow-up questions and point out that neither of the men challenging the gun ban, Stephen Voisine and William Armstrong, had a weapon in the domestic violence incidents for which they were convicted.
The content of the Thomas inquiry was of less interest than it having happened at all.The content of the Thomas inquiry was of less interest than it having happened at all.
Thomas last asked a question in court Feb. 22, 2006. His participation Monday might have been influenced by the death of his closest ally on the court, Justice Antonin Scalia. Scalia died Feb. 13. Thomas last asked a question in Supreme Court arguments on Feb. 22, 2006.
Scalia was one of the court’s most aggressive questioners. He created a stir in 2013 when he made what seemed to be a light-hearted joke about lawyers trained at Harvard and his alma mater, Yale.
Thomas has given several reasons over the years for not asking questions. He has said that his colleagues ask too many, for instance, and that oral arguments should be a time for lawyers to present their cases. [Justice Thomas finishes his thought]
“I think it’s unnecessary to deciding cases to ask that many questions and I don’t think it’s helpful,” he once said. “I think we should listen to lawyers who are arguing their case and I think we should allow the advocates to advocate.” Thomas has given several reasons over the years for not asking questions. He has said, for instance, that his colleagues ask too many and that oral arguments should be a time for lawyers to present their cases.
He made a joke from the bench in 2013 that sent reporters and court watchers into overdrive trying to divine the exact words. “I think it’s unnecessary to deciding cases to ask that many questions, and I don’t think it’s helpful,” he once said. “I think we should listen to lawyers who are arguing their case, and I think we should allow the advocates to advocate.”
Despite his previous refusal to ask questions, Thomas has prompted his seatmate, liberal Justice Stephen G. Breyer, to ask some for him, he once confessed. Sometimes, Thomas leans back and looks at the ceiling from his high-backed black leather chair, and other times he seems to be in animated conversation with Justice Stephen G. Breyer, who sits to his right on the bench.
Thomas once said that those conversations make their way to the lawyers.
“I’ll say, ‘What about this, Steve,’ and he’ll pop up and ask a question,” a laughing Thomas told a group of law students. “I’ll say, ‘It was just something I was throwing out.’ So you can blame some of those [Breyer questions] on me.”“I’ll say, ‘What about this, Steve,’ and he’ll pop up and ask a question,” a laughing Thomas told a group of law students. “I’ll say, ‘It was just something I was throwing out.’ So you can blame some of those [Breyer questions] on me.”
Though there was murmuring among court spectators when Thomas began asking questions, his fellow justices seemed to take it in stride.
Breyer and Justice Anthony M. Kennedy asked questions based on Thomas’s remarks.
The 67-year-old justice’s questioning came in the court’s first case of the day, Voisine v. U.S.
In the second case, about when a judge should recuse himself from a case in which he was once involved, Thomas listened intently and several times seemed to move toward his microphone. But the questioning was over for the day.