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Saturday, July 13, 2024 | Back issues
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Clarence Thomas Breaks 10 Years of High Court Silence

WASHINGTON (CN) - The death of Justice Antonin Scalia promises to change the way the Supreme Court operates in many potentially momentous ways, but Monday's arguments presented a more minor if equally noticeable shift on the nation's highest court.

For the first time in 10 years, Justice Clarence Thomas asked a question from the bench.

The query happened during remarks by Justice Department attorney Ilana Eisenstein in the case Voisine v. U.S., a challenge to the federal ban against firearm ownership by convicted domestic abusers.

Having spent the last 15 minutes defending the ban against people convicted of "reckless" misdemeanor charges, Eisenstein asked whether there were any more questions, and Thomas unexpectedly raised his voice.

"Ms. Eisenstein, one question," Thomas said.

There was an audible shift in the packed courtroom as the audience sat up in their chairs and members of the press scrambled for their notebooks and pens to capture what occasioned the conservative justice to break his 10-year streak not asking questions from the bench.

"Can you give me - this is a misdemeanor violation," Thomas said. "It suspends a constitutional right. Can you give me another area where a misdemeanor violation suspends a constitutional right?"

Following up with nine more questions, Thomas pushed Eisenstein to come up with another scenario in which such a suspension would be warranted.

Though Thomas has not asked a question from the bench since Feb. 22, 2006, his fellow justices seemed unfazed by the change Monday. All either looked ahead as usual or turned to look as Thomas rolled through his questions.

He asked whether the government could shut down a publisher who was reckless in displaying children in compromising circumstances, suspending its First Amendment rights.

Eisenstein prompted another question by saying there could be some measured restrictions on the publisher.

"So how is that different from suspending your Second Amendment right?" he asked.

The justice finally asked Eisenstein if the case would be better if the two petitioners had used guns in their acts of domestic violence, a point with which Eisenstein agreed.

Congress enacted a law in 1996 that prevents people convicted on misdemeanor domestic violence charges from owning guns.

In the case at hand, challengers Stephen Voisine and William Armstrong broke domestic-violence laws in Maine.

While Voisine assaulted a girlfriend in 2004, Armstrong pleaded guilty for doing the same to his wife in 2008. Both were charged with "intentionally, knowingly or recklessly caus[ing] bodily injury or offensive physical contact."

Armstrong ran afoul of the federal law in 2010 when investigators found guns and ammunition in his house during a search in an unrelated drug case. He was soon charged with unlawful possession of a firearm by one previously convicted of a misdemeanor crime of domestic violence.

Voisine, on the other hand, can point to the rumor of a dead bald eagle for his case's day in the Supreme Court. In 2009, with investigators homed in on him after receiving an anonymous tip claiming he had shot a bald eagle, Voisine turned over a gun, triggering his violation of the federal law.


Both men moved to dismiss their indictments, claiming the state-law assault and domestic-assault statutes were not enough to trigger the federal ban on owning guns. Federal judges denied the motions, and Voisine and Armstrong entered conditional pleas reserving the right to appeal their motions to dismiss.

The two men claim "reckless" is not a high enough standard to qualify as battery. The common law definition of battery requires the violence in question to be intentional, Voisine and Armstrong contend, meaning reckless conduct should not be covered under the federal weapons restriction.

Arguing for Voisine and Armstrong at the hearing Monday, Virginia Villa said the law considers intentionally offensive action, rather than the recklessness, because the statute contains the word "use."

Overall the justices did not seem to buy Villa's point.

Justice Sonia Sotomayor pointed out that if a husband threw a bottle toward his wife, the bottle smashed against the wall and the pieces embedded themselves in her face, he would still be liable under domestic-violence statutes, even if he didn't mean to hit his wife with the bottle.

"Intentionality, in my mind, is misperceived, because you think - you're talking about intentionality as the act of causing the injury," Sotomayor said before delving into this hypothetical.

Villa offered another example: this time of a person she represented who slammed a door while running from a person trying to beat him up. Just because the pursuer got his fingers caught in the door does not mean Villa's client battered him, because his intent was to close the door, not to hurt the person he was fleeing from, Villa said.

But Justice Elena Kagan disagreed, arguing the act of slamming the door constituted a use of force.

"Doing something like driving a car 200 miles an hour, or throwing a plate, or slamming a door when somebody's hand is in the vicinity, all of those things involve the requisite risk and all of those things involve the use of physical force," Kagan said.

Villa's argument took up the majority of the hearing, lasting about half an hour before she sat down.

The justices allowed Eisenstein to speak uninterrupted for considerably longer than Villa, at least at the outset of her arguments.

Eisenstein said that states "overwhelmingly" include recklessness in battery statutes. Limiting misdemeanor crimes to those involving intentional conduce, she said, would force prosecutors to prove an abuser intended to cause injury in order to apply the federal weapons ban.

This prompted Chief Justice John Roberts to speak up.

"What's so bad about that?" He asked. "I mean, given her door example, for example, why would the accidental or perhaps you would say she - you know - he or she knew the person was close, why would that constitute misdemeanor crime of domestic violence?"

Eisenstein then contended Congress meant to cover recklessness in its weapons-ban law, even if it didn't explicitly do so. Dismissing Villa's door example, the attorney said it would be nothing more than negligence.

Roberts then asked if a man who speeds through a stop sign could prosecuted under her definition of battery if his wife is injured in the resulting accident. Eisenstein argued such prosecution could be possible, but that it would be a very narrow circumstance.

"My argument is the opposite, which is that this court should effectuate Congress's purpose by giving [the federal weapons ban] the meaning that Congress intended, which is to cover generally applicable assault and battery statutes regardless of whether, on a rare instance, they may end up covering an individual who was recklessly driving and injured a family member," Eisenstein said.

While this point caused some back and forth among the justices, Eisenstein summed up her argument by suggesting the government's interpretation of the law would primarily only effect people who committed clear domestic violence.

"In the face of petitioner's hypothetical's, petitioner struggles to even conceive of a hypothetical example of where there is a reckless battery that would - against a family member that would not constitute a misdemeanor crime of domestic violence," Eisenstein said.

As is its custom, the court made a transcript of the groundbreaking hearing available this afternoon.

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