Justice Clarence ThomasClarence ThomasHow religious liberty was distorted in the age of COVID-19 Supreme Court wrestles with limits on digital billboard ads, free speech Winsome Sears: The latest Black conservative to make liberals nervous MORE asked a series of questions from the Supreme Court bench during oral arguments on Monday, the first time in 10 years he has done so.
Thomas asked the attorney for the federal government at least 12 questions during the second half of Monday’s oral arguments in a gun rights case, shocking observers used to the conservative’s public silence during cases.
“Can you give me another area where a misdemeanor violation suspends a constitutional right?” Thomas asked Assistant to the Solicitor General Ilana Eisenstein, according to court transcripts.
The questions were even more notable coming after the death of fellow conservative Justice Antonin Scalia, who frequently interrogated lawyers during oral arguments.
The case before the court on Monday, Stephen Voisine v. United States, centers on the convictions of two men who had been charged with domestic violence.
The court is being asked to decide whether a prior conviction of “reckless” domestic violence qualifies as a federal misdemeanor crime of domestic violence, which would bar the men from possessing firearms.
Thomas, one of the court’s four remaining conservative members, asked Eisenstein how long the suspension of the right to own a firearm is under a misdemeanor domestic violence charge.
“Your Honor, the right is suspended indefinitely,” she said.
“OK,” Thomas responded. “So can you think of a First Amendment suspension or a suspension of a First Amendment right that is permanent?”
After Eisenstein clarified that the ban in not necessarily permanent, Thomas questioned why a person would be barred from owning a firearm if a firearm had not been used in the domestic violence case.
“It is a suspension that is actually indirectly related or actually unrelated,” he said. “It’s just a family member’s involved in a misdemeanor violation; therefore, a constitutional right is suspended.”
Giving a hypothetical, he asked whether a publisher could be banned from ever publishing again if found to have recklessly used a child in an advertisement.
Eisenstein said she didn’t think the right to ever publish again could be take away, but it could be limited.
“So how is that different from suspending your Second Amendment right?” Thomas asked.
Thomas’s decision to speak up during oral arguments could signal that he intends to take a more prominent role on the court following Scalia’s death.
With Republicans vowing to block President Obama’s nominee to replace Scalia, no matter who it is, the Supreme Court could be left with only eight members until well into 2017.
Updated at 5:48 p.m.