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Two Justices Pick Up Where Scalia Left Off

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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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 Scalia's jurisprudential son, stepped into the light and broke his decade-long silence during an oral argument. He did it in a classic Scalian manner, catching  a government lawyer off-guard and badgering her in an intellectually interesting way about gun rights.

QuickTake U.S. Supreme Court

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 Scalia’s death, but the timing of the release made Kagan look like Scalia’s successor in literary style and judicial humor.

Thomas’s intervention made headlines more for the fact that it occurred than for its content. In fact, what 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.”

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.

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. Eisenstein had no reason to be ready with an answer because the question wasn’t supposed to be asked.

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?

Eisenstein answered these questions by emphasizing congressional findings that domestic-violence convictions significantly raise the risk of subsequent violent crime involving a gun against a domestic partner.

But the point of the questions wasn’t to affect the outcome of this particular case. It was to signal that Thomas thinks that the law is unconstitutional, and should be challenged as such. What's more, if you accept the premise that Second Amendment rights are basic, as current Supreme Court jurisprudence maintains, then Thomas’s questions are genuinely hard ones to answer convincingly.

It would be easy to imagine Scalia doing the same thing; Thomas’s originalism is a product of his exposure to Scalia’s jurisprudence. Before joining the court, Thomas was a conservative, but when he testified at his confirmation hearing that he hadn’t really thought about Roe v. Wade, that was a sincere statement that he didn’t arrive with a developed approach to constitutional interpretation.

With his questioning last week, Thomas was entering the space left by Scalia’s death. Who knows whether it will continue, but it seemed like a combination of a tribute and a response to a father's absence.

Kagan’s opinion also functioned as an assertion of succession to another of Scalia role, that of court literary stylist and resident wit. Kagan, who like Scalia once taught law at the University of Chicago, is every bit as funny as Scalia was. She’s just less mean. You can bet that the next time someone studies the frequency of laughter in the oral arguments, Kagan will turn out to be the most common instigator, the way Scalia was the last time anyone checked.

One court-watcher has already awarded Kagan the title of best writer on the current court in reaction to her breezy dissent last week in Lockhart v. U.S.. I'd say it’s too soon to make that determination, but it’s clear that Kagan is making a bid.

The conversational style Kagan adopted is her own, not derivative of Scalia's. But Scalia certainly wrote more colloquially than the other justices, especially in recent years. It was as if he’d realized that the Internet had loosened formal literary styles, and in his own way, he was trying to keep up. For Kagan, in contrast, the informal style is generationally natural.

In her official comments after Scalia's death, Kagan praised his “peerless writing.” She might become his peer on that dimension -- but his death means that she will have a chance to be peerless in her judicial court, as he was in his.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Jonathan Landman at jlandman4@bloomberg.net