U.S. Supreme Court Justice Thomas asks first question in 10 years

At heart, law professors are simply overpaid nerds, the kind of who take notes in three colors of ink and use two sizes of Post-its to tab out a casebook. We tend to have the ability to find something interesting in proceedings that would bore a normal human being into a state of coma.

Thus it was that at 10:45 a.m. Monday, I was in a sparsely populated Supreme Court press gallery watching Assistant U.S. Solicitor General Ilana Eisenstein provide a rapid wrap-up to a desultory argument over the meaning of “use” as applied a domestic-violence statute forbidding a defendant from “intentionally, knowingly or recklessly” causing “bodily injury or offensive physical contact” with a domestic partner.

Like a drowsy One-L Criminal Law class, the discussion had droned idly from Black’s Law Dictionary to Blackstone’s Commentaries. The topic, insofar as one could be found, seemed to be whether under a given state’s statute, “offensive physical contact” could be merely “reckless,” or had to be “intentional or knowing.” And if a defendant has been previously convicted of physical contact that was offensive but “merely” reckless, could that conviction be the basis for a later conviction under federal law that forbids anyone “convicted...of a misdemeanor crime of domestic violence” from “possess[ing]” guns or ammunition?

Virginia Villa, an assistant federal public defender, had endeavored without making much progress to convince the court that Congress, which wrote the gun-possession statute, could not have intended the statute to sweep so broadly. So confident was Eisenstein, her opponent, that she was preparing to close up shop early.

“If there are no further questions,” she began.

At this point the entire Supreme Court chamber sailed into the unknown.

“Ms. Eisenstein, one question,” said Justice Clarence Thomas.

Though the vigilant marshals keep a tight lid on noise, it’s safe to say that not since Clarence Darrow for the defense called prosecutor William Jennings Bryan himself to the stand has an American courtroom been so startled. Thomas has not asked a question in court since February 22, 2006. His silence has been the subject of speculation, ridicule, and indignant denunciation. (Jeffrey Toobin of The New Yorker two years ago called it “disgraceful.”) Others, including me, had thought it instead a sad loss for the Court. But it’s safe to say that nobody expected Voisine v. United States to be the case that would break the streak.

Yet here Thomas was, and his question was far from random. That’s because under the surface of the case lies the issue of guns. When the defendants first petitioned the Court for review, they had posed as a question for the Court whether the federal gun-possession statutes are “unconstitutional under the Second, Fifth, and Sixth Amendments and the Ex Post Facto Clause of the United States Constitution.”