Justice Clarence Thomas surprised a great deal of lawyers, reporters and many others present at the Supreme Court on Monday when he presented some questions during an oral argument for the very first time in 10 years.
It was the second week the court has heard arguments since the death of Justice Antonin Scalia, Thomas’ friend and fellow conservative. Thomas for years sat directly to Scalia’s right. Scalia’s chair is now draped in black in a tribute to his death on Feb. 13.
His decision to speak now stipulated that Thomas might be stepping up to replace the prominent voice of Scalia, who happened to be an aggressive questioner and a dominant presence during arguments, the only time the public can see the court working on a case.
Monday’s case involved 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.
With exactly 10 minutes left in the hour-long session, Justice Department lawyer Ilana Eisenstein was about to sit down after answering a barrage of questions from other justices. Thomas then caught her by surprise, asking whether the violation of any other law “suspends a constitutional right.”
Thomas’s unexpected silence over the years has become a peculiarity over the years. Thomas has expressed in the past that he relies on the written briefs and doesn’t need to ask questions of the lawyers appearing in court.
“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 peppered Eisenstein with several questions about Second Amendment gun rights, a topic no other justice had asked about. He noted that the law allows someone convicted of a misdemeanor assault charge to get a lifetime ban on possessing a gun “which at least as of now results in suspension of a constitutional right.”
“The suspension is not directly related to the use of a weapon?” Thomas asked
Thomas last asked a question in court on Feb. 22, 2006. He has come under criticism for his silence from some who say he is neglecting his duties as a justice. Every other justice regularly poses questions from the bench.
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.”
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