After ten years without asking a question at oral argument, Justice Clarence Thomas broke his silence. His question came last week in Voisine v. United States, a case that considered whether a domestic assault conviction qualifies as a federal “misdemeanor crime of domestic violence,” which in many states leads to a ban on firearms possession. (For more details on the case, check out SCOTUSBlog’s coverage.)
The assistant to the U.S. Solicitor General Ilana H. Eisenstein faced an unusually quiet bench. Just as she was prepared to finish up her argument, Justice Thomas’s deep voice rumbled through the courtroom. “Can you think of another constitutional right that can be suspended based upon a misdemeanor violation of a State law?” he asked. Regular courtwatchers in the audience were startled. A sleepy morning at the Court suddenly got interesting. “Everyone shifted forward in their seats and there was a look of shock on many spectators’ faces,” reported Mark Joseph Stern in Slate. All of a sudden the most reticent of justices was suddenly channeling the spirit of his recently departed, unapologetically vocal colleague, as he relentlessly pressed Eisenstein. At one point he even seemed to make a veiled reference to the possible implications of replacing his frequent ally Justice Scalia with a more liberal justice, when he described the right to possess a gun as a constitutional right “at least as of now.” Justice Thomas followed up with an additional eight questions, in an exchange that lasted for six minutes. According to Adam Liptak in the New York Times, Thomas emerged the victor of this particular exchange.
Listen to the full exchange via Oyez here:
The full transcript is available here.
Justice Thomas, who was appointed to the Court in 1991, was never a particularly vocal presence in oral arguments, but he would contribute occasionally to the discussion. His most noted comments came in 2002 in oral arguments in Virginia v. Black. The case considered whether the criminalization of the burning of a cross violated the First Amendment. According to the account of New York Times reporter Linda Greenhouse, “it was not clear how the court was inclined to decide it— until Justice Clarence Thomas spoke.” Thomas’ brief comments transfixed the courtroom. A burning cross is “unlike any symbol in our society,’” its only purpose “to terrorize a population,” said Justice Thomas, the only African American on the Court. “The other justices gave him rapt attention” as he spoke, reported Greenhouse. “Afterward, the court’s mood appeared to have changed. While the justices had earlier appeared somewhat doubtful of the Virginia statute’s constitutionality, they now seemed quite convinced that they could uphold it as consistent with the First Amendment.”
Listen to the exchange here:
But between 2006 and last week, Thomas offered nary a question during oral argument. Thomas has offered varying explanations for his silence, the most common being that he feels the bench asks too many questions already and he would rather allow the attorneys to make their arguments. Some, most notably Jeffrey Toobin, have criticized Thomas’ silence as indicating a problematic detachment from the proceedings of the Court. The only comment he made during oral arguments during this period was a joke he cracked in 2013 during arguments in a case called Boyer v. Louisiana. There was considerable debate about what exactly Thomas said, but it was eventually confirmed to be a joke about the quality (or lack thereof) of a law degree from Harvard.
Listen to it here:
Justice Thomas’ contributions, while rare, have added much to the dynamic of oral arguments at the High Court. Now the question is whether, with Justice Scalia gone, Justice Thomas will find more opportunities to step into the fray of oral argument, like he did last week.