Few reporters apparently showed up for the argument in Voisine v. United States today. That’s probably because no one expected this:
This reportedly prompted “audible gasps” from some of the lawyers attending the argument (although not from Ms. Eisenstein or any of the other justices). That’s because, as you may recall, Justice Thomas has not spoken during oral argument since 2013 (when he told a joke!) and his last actual question was uttered almost exactly 10 years ago, on February 22, 2006.
At the time, of course, no one had any idea it would be another seven years before Justice Thomas spoke in the courtroom again, and more than a decade before another question would come forth. So there was no reason to report on the 2006 question. So just for the record, here’s what it was:
Counsel, before you change subjects, isn’t it more accurate that the trial court actually found that the evidence met the Gregory standard?
The answer is a little complicated, plus who cares, so I’ll just note that Justice Thomas followed up with another five sentences elaborating on the question, for a total of 133 words during that argument. And I mention that because at the time, it represented almost half his total output (281) during the year-and-a-half for which records then existed (the Court only started identifying justices by name in the transcripts in October 2004).
Now we have, in Voisine, no fewer than 298 words in a single argument, comprising at least nine separate questions, more than Justice Thomas has delivered in the preceding 11.5 years combined. (This is based on the rough transcript, so don’t hold me to these numbers.)
Man, I bet those reporters are kicking themselves for not showing up.
What’s that? You want to know what the questions were? Nerd alert! Okay, fine. The case involves a federal law that prohibits people convicted of domestic violence from owning guns. The petitioners argue that the law should be interpreted to apply only to people who acted intentionally; they pleaded guilty to misdemeanor charges that require only reckless behavior. Voisine, for example, pleaded guilty to slapping his girlfriend while he was drunk, and then later someone reported he shot a bald eagle with a rifle. He was then convicted under the federal gun law, and maybe also on general principles because he slapped a woman and shot a bald eagle. I mean, WTF? (Both probably inadmissible, but still.)
Anyway, a-holes still have constitutional rights, and Justice Thomas’s question involved that Second Amendment one:
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?
Yes, it took him a couple of sentences to warm up, but give the guy a break—it’s his first question in a decade.
His point was (and other questions followed, but only the first one is sufficiently newsworthy to quote) that the case involves a lifetime ban on gun possession based on a reckless-conduct misdemeanor committed years earlier that did not itself involve the use of a gun. And while the guy did hit a woman and whack a bald eagle—I mean, Jesus Christ—it is a fair point that in this particular case the connection between the earlier conduct and gun violence is tenuous (if that).
The state’s response was that—although Ms. Eisenstein couldn’t in fact think of another example—studies show individuals convicted of domestic violence are more likely to kill a family member, and so Congress had a sufficient basis for the law that it should survive constitutional scrutiny. Maybe more importantly, as Justice Breyer (who does like to talk) then pointed out, it looks like the petitioners didn’t raise the constitutional issue, so the Court doesn’t have to decide it in this particular case. The only question here, he said, is what Congress intended.
Time was up after that, so there were no further questions from Justice Thomas. Although he was probably exhausted by that point anyway.