Newspaper article Pittsburgh Post-Gazette (Pittsburgh, PA)

Picking Up Where Scalia Left off Two Justices, One Liberal and One Conservative, Are Displaying Scalian Tendencies

Newspaper article Pittsburgh Post-Gazette (Pittsburgh, PA)

Picking Up Where Scalia Left off Two Justices, One Liberal and One Conservative, Are Displaying Scalian Tendencies

Article excerpt

The "death of fathers," Claudius tells Hamlet, is nature's "common theme." That theme played out last week at the U.S. Supreme Court.

In the shadow of memorial services for Justice Antonin Scalia, Justice Clarence Thomas, who is something like Justice Scalia's jurisprudential son, stepped into the light and broke his decade- long silence during an oral argument. He did it in classic Scalian manner, catching a government lawyer off-guard and badgering her in an intellectually interesting way about gun rights.

Then Justice Elena Kagan published a Scalia-style dissent in a statutory interpretation case, the late justice's area of special expertise. The opinion had to have been written before Justice Scalia's death, but the timing of the release made Justice Kagan look like Justice Scalia's successor in literary style and judicial humor.

Justice Thomas's intervention made headlines more for the fact that it occurred than for its content. In fact, what Justice Thomas had to say was of considerable interest. The case involved a federal law that bars people convicted of misdemeanor domestic violence crimes from possessing firearms. The issue before the court was the precise meaning of the word "use" in the phrase "use of physical force."

Justice Thomas made it clear that he was approaching the case from a completely different angle. He asked Assistant Solicitor General Ilana Eisenstein to give another example "where a misdemeanor suspends a constitutional right." The implication of the question was that the law itself might be unconstitutional. Constitutionality was not supposed to be an issue in the case, and indeed, the justices had specifically refused to consider it.

Ms. Eisenstein, clearly taken by surprise, couldn't think of another example - which was hardly her fault because the law is in fact pretty unusual. She replied that even basic rights could be suspended provided the state has a strong enough interest.

Possibly a better answer would have been that a person convicted of a misdemeanor can be imprisoned, often for as much as a year, which certainly counts as a deprivation of basic rights. There's no inherent reason to think that a misdemeanor shouldn't be punishable by the loss of certain rights any more than a felony. After all, they're both crimes.

But this is Tuesday morning quarterbacking. Ms. Eisenstein had no reason to be ready with an answer because the question wasn't supposed to be asked.

Justice Thomas was just getting started. He had plotted out a set of hard questions: Why was the suspension permanent? Would it be constitutional to suspend free-speech rights permanently in the aftermath of a misdemeanor conviction? Wasn't it problematic that the suspension of gun-possession rights wasn't dependent on the use of a gun in a crime in the first place? …

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