Justice Thomas asked a question!

Clarence_Thomas_official_SCOTUS_portraitThere is a great account in The Atlantic about the moment Justice Clarence Thomas asked his first question in the Court in a full decade and a handful of days.


Clarence Thomas Breaks His Silence
The Supreme Court justice asked a question for the first time in 10 years, revealing a different dynamic since the passing of Antonin Scalia earlier this month.

At heart, law professors are simply overpaid nerds, the kind who take notes in three colors of ink and use two sizes of Post-its to tab out a casebook. We tend to have the ability to find something interesting in proceedings that would bore a normal human being into a state of coma.

Thus it was that at 10:45 a.m. Monday, I was in a sparsely populated Supreme Court press gallery watching Assistant U.S. Solicitor General Ilana Eisenstein provide a rapid wrap-up to a desultory argument over the meaning of “use” as applied a domestic-violence statute forbidding a defendant from “intentionally, knowingly or recklessly” causing “bodily injury or offensive physical contact” with a domestic partner.

Like a drowsy One-L Criminal Law class, the discussion had droned idly from Black’s Law Dictionary to Blackstone’s Commentaries. The topic, insofar as one could be found, seemed to be whether under a given state’s statute, “offensive physical contact” could be merely “reckless,” or had to be “intentional or knowing.” And if a defendant has been previously convicted of physical contact that was offensive but “merely” reckless, could that conviction be the basis for a later conviction under federal law that forbids anyone “convicted…of a misdemeanor crime of domestic violence” from “possess[ing]” guns or ammunition?

Virginia Villa, an assistant federal public defender, had endeavored without making much progress to convince the court that Congress, which wrote the gun-possession statute, could not have intended the statute to sweep so broadly. So confident was Eisenstein, her opponent, that she was preparing to close up shop early.

“If there are no further questions,” she began.

At this point the entire Supreme Court chamber sailed into the unknown.

“Ms. Eisenstein, one question,” said Justice Clarence Thomas.

Though the vigilant marshals keep a tight lid on noise, it’s safe to say that not since Clarence Darrow for the defense called prosecutor William Jennings Bryan himself to the stand has an American courtroom been so startled.


Read the rest there.

There is some really interesting Second Amendment stuff in the piece as well.

Is a new era for the Court beginning?

About Fr. John Zuhlsdorf

Fr. Z is the guy who runs this blog. o{]:¬)
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  1. Dspauldi says:

    I was thinking about this the other day and wonder if it is nothing less or more than a beautiful display of feeling for Scalia.

    Thomas asked the questions Scalia would, most assuredly, have. I see in it a man missing his friend since the case is all but decided and Thomas looks like he will be the only dissent.

    I always think well of Justice Thomas and his friendship with Scalia was something beautiful and enviable.

  2. Kerry says:

    Note this opinion from the Atlantic’s author, “Scalia’s absence has been notable during argument. One of Scalia’s roles on the bench was to play ideological bad-cop—when a lawyer transgressed against conservative orthodoxy, Scalia would often step in with an aggressive, even intimidating, question. In that role, he played a significant role in moving the valence of argument to the right. And like Thomas, Scalia took on the Second Amendment as his special darling.”
    What a repugnant phrase for the Constitution, “transgressed conservative orthodoxy”. God forbid that a mere barrister would have to face an intimidating question, “Oh the humanity!”.
    I have heard the same sentiment from an argumentative ‘homosexuality is matrimony’ fan expressed as “But the love each other”. In this instance conservative orthodoxy is called natural law. The left is as eager as a Lugosi in a blood bank to do something, anything about a particular tool they want only in the hands of police and military. I saw a movie like that once.

  3. Kerry says:

    Oops, “But they…”

  4. Jenson71 says:

    I’m surprised it has gotten such attention, and I have to think Scalia’s absence and our country’s attention on the Court now have been the major reasons.

    Justice Thomas has been clear in interviews I’ve read that he finds questioning during oral arguments rather unnecessary if one has read the briefs. So, I take it he genuinely was in the dark on a particular issue here. I think it more likely he’ll go another 10 years without a question rather than change his beliefs about the utility of questioning during oral arguments.

    A great website for SCOTUS-watchers: http://www.oyez.org. Faster than any other outlet I’m aware of, they put up audio of the arguments and have a great archive. Voisine v. U.S.’s audio is not up yet.

  5. Perhaps Justice Scalia pinched Justice Thomas on the face before he died and said, “Remember…”

  6. KAS says:

    God bless Clarence Thomas.

Comments are closed.