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The news flashed across screens as soon as it happened. Thomas speaks. Justice Clarence Thomas has not asked a question during oral argument for 10 years. Today, he asked not one but nine questions. He did so just 16 days after the death of his close friend Justice Antonin Scalia who, unlike Thomas, was an aggressive questioner. NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: Oral argument has been muted since Scalia's death with far fewer questions than were typical when Scalia was alive and interrogating counsel in his inimitable way. And so it was today that Assistant Solicitor General Ilana Eisenstein seemed to run out of things to say in a case involving a federal law that bars those convicted of domestic violence from owning a gun. With roughly eight minutes left in the half hour allotted for her argument, Eisenstein was about to sit down, telling the justices, if there are no further questions - at which point the basso profundo voice of Clarence Thomas rumbled across the Courtroom.
Would a misdemeanor conviction under any other law suspend a constitutional right, he asked. At the sound of Thomas's voice, there was an audible shifting of seats in the chamber and a palpable jolt in the press section. Chief Justice Roberts' head swiveled in Thomas's direction. But other than that, the justices betrayed no reaction.
Though the focus of the case was a statutory interpretation question, Thomas homed in on a constitutional question that the court had explicitly declined to review - whether the law violates the Second Amendment right to own a gun. His follow-up questions seemed to acknowledge that the court's 5-to-4 opinion declaring an individual right to own a gun, written by justice Scalia in 2008, could be on shaky ground. But the domestic violence law, said Thomas, quote, "at least as of now, results in a suspension of a constitutional right."
He went on to note that the domestic violence convictions here did not involve a gun. To that, the government's advocate replied that Congress relied on studies showing that when an individual batters a spouse, the chances of that individual later killing the spouse with a gun go up six-fold. Justice Kennedy, who cast the fifth and deciding vote in the 2008 Second Amendment case, interjected at this point.
I suppose a partial answer to justice Thomas's question is the federal law that requires convicted sex offenders to register before they can travel across state lines. Thomas's question, which was the first since February 22, 2006, served to overshadowed the day's second case involving important questions of judicial recusal. At issue was whether a defendant is denied a fair hearing when a prosecutor who authorized seeking the death penalty in a case later becomes a judge and rules on the same case. Before the court was the death sentence of Terrance Williams, convicted in 1986 of a brutal murder. The Philadelphia DA at the time was Ronald Castille, who authorized seeking the death penalty in the case.
Decades later, Williams' conviction was set aside on grounds of prosecutorial misconduct for hiding mitigating evidence from the defense. By then, one-time DA Castille was chief justice of the Pennsylvania Supreme Court and refused to disqualify himself from ruling in the case. His court subsequently voted ultimately to reinstate Williams' death sentence.
In the U.S. Supreme Court today, public defender Stuart Lev told the justices that under our Constitution, you cannot be both prosecutor and judge in a case. He argued that Justice Castille violated the defendant's constitutional right to due process of law when he refused to step aside in the case. The court's conservatives were resistant.
Justice Alito - the problem is, where's the constitutional line going to be? You want us to get pretty deeply into the issue of a constitutional recusal policy for judges. Chief Justice Roberts - what if the DA had only been involved in some procedural question? Even the liberal Justice Breyer was concerned; it's not your case that worries me, he said, but there are disqualification rules all over the law. And suddenly, to turn this into a constitutional matter, we don't know what we're getting into. Unlike in the day's earlier case, Justice Thomas asked no questions. Nina Totenberg, NPR News, Washington.
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