No Longer a Bench Player: A Decade Later, Justice Thomas Gets in the Game

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As was widely reported, yesterday marked the first time in just over a decade that Justice Thomas asked a question during oral arguments. Thomas’s questions came about during oral arguments in the case of Voisine v. United States, in which the legal questions are, first, whether a misdemeanor crime with the mens rea of recklessness qualifies as a “misdemeanor crime of domestic violence” as defined by 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9); and second, whether 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9) are unconstitutional under the Second, Fifth, and Sixth Amendments and the Ex Post Facto Clause of the United States Constitution. Thomas directed questions to the Justice Department’s lawyer, Illana Eisenstein, about whether there were other areas “where a misdemeanor violation suspends a constitutional right.”

From an adversarial ethics perspective, the questions from Justice Thomas during oral argument signal a significant shift in his view of the proper role of the justices—or, at least his own role—in Supreme Court cases. For one, Thomas has previously said he frequently relies on the written briefs and therefore does not see a need to ask questions of the lawyers appearing before the Court. At other times, he has cited respectfulness to the lawyers and the propriety of not interrupting them. Thomas once mused that, “Maybe it’s the Southerner in me. Maybe it’s the introvert in me, I don’t know. I think that when somebody’s talking, somebody ought to listen.”

In general, however, it seemed he believed that the adversarial process should involve the parties to the case making arguments to the Court—not the Court engaging in arguments with the parties. Thomas has long held that, basically, Supreme Court litigation is adversarial enough without the justices adding to the hostility. At the very least, Thomas has believed that they ought not to “badger people.”

Perhaps Justice Thomas, following Justice Scalia’s death earlier this month, feels that the new makeup of the Court gives the more liberal justices an unfair advantage to pick the winners and losers in cases if he remains silent. Though he might think the justices should be rather more like impartial referees than active participants in litigation, his role as a just another warm body at the end of the bench might be over for good.

On Monday, Justice Thomas was a player.

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