Supreme Court Justice Clarence Thomas is famously taciturn. In fact, as of Monday morning he had never asked a single question during oral arguments in more than 10 years. That changed when he piped up in arguments around Voisine v. United States, a case concerning the federal ban on gun possession by people convicted of domestic violence.
Thomas spoke up to raise concern for the Second Amendment rights of Stephen Voisine and William Armstrong III, two Maine men who were convicted of assaulting their partners and later charged with gun ownership by a person convicted of domestic violence. The Huffington Post's Cristian Farias reports:
[Thomas] wanted to know "how long" the suspension of Second Amendment rights was for people prohibited under federal law to possess firearms, and he pressed [assistant solicitor general Ilana] Eisenstein to name any other legal analog where the federal government could permanently curtail constitutional rights following a conviction for an unrelated offense.
"Let's say that a publisher is reckless about the use of children, and what could be considered indecent displays and that that triggers a violation of, say, a hypothetical law against the use of children in these ads," he said.
After that setup, he asked: "Could you suspend that publisher's right to ever publish again?"
Thomas's decision to speak apparently provoked "audible gasps" in the court.
The case isn't primarily about the Second Amendment; it rather concerns whether the federal statute applies to Voisine and Armstrong, given the differences in the Maine and federal domestic violence bans. In Maine, it's sufficient to show a defendant acted "recklessly" to convict him of misdemeanor domestic violence; the federal standard is more stringent. So Voisine and Armstrong think a Maine conviction shouldn't trigger the federal ban on gun ownership.
But with Antonin Scalia — who wrote the Court's opinion in DC v. Heller in 2008 finding that the Second Amendment contains an individual right to bear arms — gone, Thomas is perhaps the biggest gun rights advocate left on the court, and apparently felt obliged to raise the issue in oral arguments if no one else would.
It was not the first time Thomas spoke in 10 years; in 2013, he broke his silence by ribbing his colleagues who went to Harvard Law School by suggesting that getting a lawyer who went there meant a defendant received "inadequate counsel" (Thomas went to Yale). But the last time he asked a question was February 22, 2006, on a death penalty case. He had previously asked questions several times in that term and the one before it.
Reasonable people can disagree about how big a deal Thomas's silence is. The New Yorker's Jeffrey Toobin argues that oral arguments are "the public’s only windows onto the Justices’ thought processes" and "offer the litigants and their lawyers their only chance to look these arbiters in the eye and make their case."
"Thomas is simply not doing his job," Toobin writes. "By refusing to acknowledge the advocates or his fellow-Justices, Thomas treats them all with disrespect."
But Scalia stuck up for his colleague in a 2012 interview, saying, "It was not at all unusual for justices not to ask questions. Thurgood Marshall rarely asked a question. Bill Brennan rarely asked questions. … Leave Clarence alone!"