Two Justices Pick Up Where Scalia Left Off
5 Mar 6, 2016 11:00 AM EST
By Noah Feldman
The “death of fathers,” Claudius tells Hamlet, is nature's “common theme.” That theme played out last week at the U.S. Supreme Court.
In the shadow of memorial services for Justice Antonin Scalia, Justice Clarence Thomas, who is something like Scalia's jurisprudential son, stepped into the light and broke his decade-long silence during an oral argument. He did it in a classic Scalian manner, catching a government lawyer off-guard and badgering her in an intellectually interesting way about gun rights...
...Thomas’s intervention made headlines more for the fact that it occurred than for its content. In fact, what Thomas had to say was of considerable interest. The case involved a federal law that bars people convicted of misdemeanor domestic violence crimes from possessing firearms. The issue before the court was the precise meaning of the word “use” in the phrase “use of physical force.”
Thomas made it clear that he was approaching the case from a completely different angle. He asked Assistant Solicitor General Ilana Eisenstein to give another example “where a misdemeanor suspends a constitutional right.” The implication of the question was that the law itself might be unconstitutional. Constitutionality was not supposed to be an issue in the case, and indeed, the justices had specifically refused to consider it.
Eisenstein, clearly taken by surprise, couldn't think of another example -- which was hardly her fault because the law is in fact pretty unusual. She replied that even basic rights could be suspended provided the state has a strong enough interest.
Possibly a better answer would have been that a person convicted of a misdemeanor can be imprisoned, often for as much as a year -- which certainly counts as a deprivation of basic rights. There's no inherent reason to think that a misdemeanor shouldn't be punishable by the loss of certain rights any more than a felony. After all, they're both crimes.
But this is Tuesday morning quarterbacking. Eisenstein had no reason to be ready with an answer because the question wasn’t supposed to be asked.
Thomas was just getting started. He had plotted out a set of hard questions: Why was the suspension permanent? Would it be constitutional to suspend free-speech rights permanently in the aftermath of a misdemeanor conviction? Wasn’t it problematic that the suspension of gun-possession rights wasn't dependent on the use of a gun in a crime in the first place?
Eisenstein answered these questions by emphasizing congressional findings that domestic-violence convictions significantly raise the risk of subsequent violent crime involving a gun against a domestic partner.
But the point of the questions wasn’t to affect the outcome of this particular case. It was to signal that Thomas thinks that the law is unconstitutional, and should be challenged as such. What's more, if you accept the premise that Second Amendment rights are basic, as current Supreme Court jurisprudence maintains, then Thomas’s questions are genuinely hard ones to answer convincingly...
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