Today, the last day of the term, the SCOTUS announced its 6-2 decision in Voisine v United States which expanded a federal firearm prohibition to include crimes of domestic violence. The consolidated cases, from Maine in the 1st Circuit, tested the scope of the longstanding "felon in possession" laws that disqualify convicted felons from possessing firearms.

Domestic violence is a misdemeanor in Maine as it is here in Michigan and in the majority of states. Justice Elena Kagan wrote the opinion, focusing on the definition of mens rea and the "use of force". The Court expressly adopted the Model Penal Code definitions of the criminal mental state, expanding that definition to include reckless conduct.

This case once again pits the ever-roving intersection between federal and state laws. Mr. Voisine's state law conviction of domestic violence was the predicate to the federal firearm charge; a charge based on a 1996 extension of the federal firearm prohibition.

In Voisine's case, while on probation for a domestic assault, the state learned he possessed a rifle. His ineligibility to do so led to federal charges. In a very well-written opinion, Justice Kagan illustrates examples of a reckless mens rea in the domestic relations context.

When a spouse throws a plate against a wall in anger near the other spouse, for example, the mens rea is reckless. And this is enough to render someone convicted of such a misdemeanor ineligible to possess a firearm.

An interesting dimension to the case is Justice Clarence Thomas' dissent raising a Second Amendment constitutional issue that was not briefed in the case. [Note: this was the case where Justice Thomas asked questions during oral argument for the first time in over a decade.] Justice Thomas asserted that the Second Amendment is treated "cavalierly" when this right -the right to bear arms- can be lost for a lifetime due to a "reckless misdemeanor conviction".

Post #546

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As appellate lawyers, we here at the Law Blogger appreciate the importance of solid cogent and logical oral argument. Oral arguments are the opportunity for the lawyers, after filing briefs, to explain their case to the panel of judges.

As SCOTUS watchers, we have noted that conservative Justice Clarence Thomas, since his appointment by George H. W. Bush in 1991, has rarely posed questions to the lawyers during argument. His decade-long stretch of silence was broken during oral argument last month on a Second Amendment case.

Not only did Justice Thomas break his silence, he posed a series of questions to the lawyers on a case that posed the question whether a misdemeanor domestic violence conviction should bar someone from the possession of a firearm for the rest of their life.  The last time Justice Thomas posed a question from the bench, it was February 2006 in a death penalty argument.

Justice Thomas has stated his reasons for not pipping-up from the bench. He believes many lines of questioning during oral argument are inappropriate; adding nothing to the substantive issues of the case and being more about a judge showcasing his or her own jurisprudential world view.

One high-profile justice, a good friend of Justice Thomas with a seat adjacent to his on the SCOTUS bench, the recently-departed Justice Antonin Scalia, reveled in questioning the lawyers during oral arguments. As a fellow conservative jurist, Scalia was the extrovert to Thomas' introvert.

Here in Michigan, many appellate practitioners are vocal about doing away with the oral argument tradition. The primary thrust of the argument is that it really does not add much to the decision-making process while consuming a disproportionate level of judicial and attorney resources.

The counterpoint is that oral argument presents the only opportunity for the judges deciding a case to question the lawyers about their reasoning and legal analysis; to better inform the judges about the case they are going to decide.

Having Justice Thomas ask a question is so rare, the event received front-page treatment on the NYT. His questions also spawned legal commentary about the efficacy of oral arguments in general; here is the link to the SCOTUSBlog post on the subject.

Post #533

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Supreme Court Justice
Clarence Thomas

SCOTUS pundits are not expecting Justice Clarence Thomas to ask any questions during the balance of the Court's term, which ends in June.  And why should they?  Justice Thomas last asked a question during oral argument in a February 2006 death-penalty case; he's been silent ever since.

Rather than interact with the lawyers appearing before him, Justice Thomas has acquired the odd habits of slowly rotating in his leather chair in the famous courtroom, staring at the ceiling, examining his nails, while listening to the lawyers' oral arguments and the questions from his more engaged colleagues.  When I was sworn into the SCOTUS bench last term, I witnessed this peculiar behavior from the jurist first-hand.

In 1991, when President Bush (41) needed to replace the retiring Justice Thurgood Marshall, a giant on the High Court, he was looking for a conservatively-minded jurist.  Aside from those required credentials, President Bush had to select someone to follow Justice Marshall's distinguished tenure.  Before ascending to the SCOTUS bench, Marshall successfully argued the seminal Brown v Board of Education case, which abolished the "separate but equal" fallacy in the public school context.

Bush's short-list began and ended with Clarence Thomas, who had only very recently been appointed to the federal appellate bench for the D.C. circuit following a solid career in the EEOC during the Regan-era.  He had never argued a case before the SCOTUS.

But who could forget, on the other hand, how the sordid Anita Hill fiasco tarnished the selection process for the high court?  And what about last month's story about unpaid taxes on his joint return with his wife?   Well, never mind all that, as his is a job-for-life.

In noting Thomas' half-decade of "taking-up space" on the Court, Adam Liptak observed in the NYT:

His attitude toward oral arguments contrasts sharply with that of his colleagues, who seem to find questioning the lawyers who appear before them a valuable way to sharpen the issues in the case, probe weaknesses, consider consequences, correct misunderstandings and start a conversation among the justices that will continue in their private conferences.

As an appellate practitioner, that's exactly what you hope to get out of oral argument; that is how our common law is supposed to get forged.

Staying silent for so long sure seems like an ineffective way to occupy one of the more significant seats on the most storied bench in the land.

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