Justice Clarence Thomas on Monday broke his 10-year streak of not asking questions during oral arguments, one of the public’s most enduring curiosities about the Supreme Court.
Thomas’s extensive questioning of a government lawyer in a relatively low-profile case stunned the courtroom and came just two weeks after the death of his closest ally on the court, Justice Antonin Scalia.
His decision to speak now indicated that Thomas might be stepping up to replace the prominent voice of Scalia, an aggressive questioner and a dominant presence during arguments, the only time the public can see the court working on a case.
Monday’s case involved a federal law that bans people convicted of domestic violence from owning a gun. The specific question was whether a misdemeanor domestic violence conviction based on “recklessness” was enough to trigger the ban on gun ownership.
Thomas and Scalia lately upbraided their colleagues for not taking other cases that would clarify the extent of a Second Amendment right to individual gun ownership, which was established in an opinion Scalia wrote in a 2008 case, District of Columbia v. Heller.
When Thomas spoke, the questioning of Assistant Solicitor General Ilana H. Eisenstein was just winding down, and she was about to take her seat.
“Ms. Eisenstein, just one question,” Thomas said. “Can you give me — this is a misdemeanor violation. It suspends a constitutional right. Can you give me another area where a misdemeanor violation suspends a constitutional right?”
When Eisenstein stumbled in her response, Thomas again pointed out that the case involves a “misdemeanor violation of domestic conduct that results in a lifetime ban on possession of a gun, which, at least as of now, is still a constitutional right.”
Eisenstein responded that Congress justified the ban because of studies showing that people who previously battered their spouses “pose up to a sixfold greater risk of killing, by a gun, their family member.”
Thomas then went on to ask a number of follow-up questions and pointed out that neither of the men challenging the gun ban, Stephen Voisine and William Armstrong, had a weapon in the domestic violence incidents for which they were convicted.
The content of Thomas’s inquiry was of less interest than the fact that it happened at all.
Thomas last asked a question in Supreme Court arguments on Feb. 22, 2006.
He created a stir in 2013 when he made what seemed to be a lighthearted joke about lawyers trained at Harvard and his alma mater, Yale.
Thomas has given several reasons over the years for not asking questions. He has said, for instance, that his colleagues ask too many and that oral arguments should be a time for lawyers to present their cases.
“I think it’s unnecessary to deciding cases to ask that many questions, and I don’t think it’s helpful,” he once said. “I think we should listen to lawyers who are arguing their case, and I think we should allow the advocates to advocate.”
Sometimes, Thomas leans back and looks at the ceiling from his high-backed black leather chair, and at other times he seems to be in animated conversation with Justice Stephen G. Breyer, who sits to his right on the bench.
Thomas once said that those conversations make their way to the lawyers.
“I’ll say, ‘What about this, Steve?,’ and he’ll pop up and ask a question,” a laughing Thomas told a group of law students. “I’ll say, ‘It was just something I was throwing out.’ So you can blame some of those [Breyer questions] on me.”
Though there was murmuring among court spectators when Thomas began asking questions, his fellow justices seemed to take it in stride.
Breyer and Justice Anthony M. Kennedy asked questions based on Thomas’s remarks.
The 67-year-old justice’s questioning came in the court’s first case of the day, Voisine v. U.S.
In the second case, about when judges should recuse themselves from cases in which they were once involved, Thomas listened intently and several times seemed to move toward his microphone. But the questioning was over for the day.