This February 29 — a day only enjoyed once every four years — we saw another rarity not witnessed in ten years: Supreme Court Justice Clarence Thomas decided to ask a question during oral arguments.
Many commentators and pundits both in and outside of the legal community found the significance of this event to be self-explanatory, following a decade of silence.
But the significance of Thomas breaking his silence goes much deeper than the passage of time. His question serves as a stark reminder of what's at stake this election cycle: the ideological balance of the Court, and, by extension, rights that may altogether lose their protections depending on who wins in November.
“Justice Thomas' message was clear, whether he intended to send it or not: This is no time to fumble about... some of our most recently recognized rights are just a judicial appointment away from extinction.”
On Monday, the Court heard arguments in just the seventh case since Justice Antonin Scalia's untimely death at a Texas ranch. The facts of the case, Voisine v. United States, are easy enough to follow: Two men who have previously been convicted of misdemeanor domestic offenses are challenging their convictions under a federal statute which makes it "unlawful for any person who has been convicted in any court of a misdemeanor crime of domestic violence … to possess … any firearm or ammunition…"
For most of Monday's argument, the Court grappled with issues of interpretation as to the meaning of the federal statute. And for most of the argument, Justice Thomas was silent. It wasn't until the government's attorney was ready to take her leave that His Honor spoke up to address a rather remarkable premise of the government's argument that had yet to be addressed. He asked, "Can you think of another constitutional right that can be suspended based upon a misdemeanor violation of a state law?"
Think about that for a moment. The government argued that a misdemeanor violation of a state law that did not involve the use of a weapon is enough to justify the indefinite suspension of what, as Justice Thomas (probably not unintentionally) went on to point out, is "at least as of now … still a constitutional right." None of the Court's other members found that concept (which, as far as I can tell, is without precedent) worth an inquiry.
Justice Thomas' message was clear, whether he intended to send it or not: This is no time to fumble about. The Court recognized an individual right to bear arms under the Second Amendment in D.C. v. Heller, a 5-4 decision to which Justice Stephen Breyer reiterated his opposition in response to Thomas' questions on Monday. Also protected by 5-4 decisions are free speech rights (Citizens United), religious freedoms (Hobby Lobby), limits on the Commerce Clause and more. Indeed, some of our most recently recognized rights are just a judicial appointment away from extinction.
In light of the fact that it was Justice Scalia who wrote the seminal opinion on the Second Amendment, Justice Thomas' question on Monday was symbolic in that it seemed to signal he would be assuming a more vocal role in fighting for the precedents conservative jurists have come to value. By alluding to the possibility of Heller's reversal, Thomas also seemed to be reminding us that this is a fight he cannot win alone.
The appointment of one, two or possibly three Justices over the next few years could produce a wild, but not unprecedented swing. Through the early 1930s, the Supreme Court had narrowly interpreted Congress' powers under the Commerce Clause. But by 1941, a frustrated Franklin D. Roosevelt was able to appoint seven members to the Court, setting the stage for a vast expansion of the federal government's powers that is still felt today.
Voters who value some of the more recent 5-4 precedents on issues like gun control and religious freedom ought to give careful consideration to which (if any) judicial philosophy their candidate subscribes to; because the consequences of this election cycle for individual rights will not go unfelt.
This piece originally appeared in Washington Examiner
This piece originally appeared in Washington Examiner