Antonin Scalia’s death has inspired strange behavior at the Supreme Court.

The Remaining Justices Are Dealing With Scalia’s Death in Surprising and Dramatic Ways

The Remaining Justices Are Dealing With Scalia’s Death in Surprising and Dramatic Ways

Oral argument from the court.
Feb. 29 2016 5:26 PM

Gone but Not Forgotten

The remaining Supreme Court justices are dealing with Antonin Scalia’s death in surprising and dramatic ways.

Justice Samuel Alito.
Supreme Court Justice Samuel Alito.

Chip Somodevilla/Getty Images

It has been, at least until Monday morning, a widely held belief that the Supreme Court did not plan to treat the absence of Antonin Scalia as big news. Indeed, when Justice Samuel Alito was asked last week in an appearance at Georgetown Law how the remaining eight justices planned to cope with what might be a lengthy and tumultuous vacancy, his response was simply: “We will deal with it.” Alito then went on to add that the high court would not necessarily be paralyzed by having only eight justices. Courts have managed this before.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate, and hosts the podcast Amicus.

And yet, as though it had been written by Aaron Sorkin in a semi-clichéd episode of the West Wing, Justice Clarence Thomas puts himself and the court back in the spotlight this morning by asking a spirited series of questions at argument in an arcane case about domestic violence and criminal intent. It was the first time Thomas had spoken at an oral argument in 10 years.


There are only a handful of reporters in the courtroom when Thomas leans forward to ask Justice Department lawyer Ilana H. Eisenstein whether two men who pled guilty to abusing their partners should really lose their constitutional right to own guns forever. Eisenstein takes a few seconds to recover from her utter surprise before she is able to answer. In a colloquy that goes on several more minutes, Thomas is careful to signal that the very right to bear arms is under attack in his view, pointedly asking whether a misdemeanor domestic violence conviction can properly result “in a lifetime ban on possession of a gun, which, at least as of now, is still a constitutional right?”

It’s as if he feels duty-bound to ask the very question Justice Scalia—whose chair stands beside him, draped in black bunting—would have asked. Thomas is going to the mat for domestic abusers and their right to bear arms, while everyone in the courtroom gapes and cranes their necks.

The uncharitable version of Thomas’ slumbering giant awakened routine is that he is finally out from under a massive shadow and feels free to talk. That’s a short distance from the longstanding and wrongheaded claim that Thomas was always Scalia’s Mini-Me, a justice with no real heft of his own. My guess is that Thomas simply feels that someone needs to give voice to the types of arguments Scalia would have made, and that this will increasingly have to be him. Whatever it is that led him to speak up so forcefully and at such length just days after the court’s other originalist has departed, it’s clear that Scalia’s absence is deeply felt at the court, and that the justices may well “deal with it” in surprising and very dramatic ways.

The second case argued today sees no more drama from Justice Thomas, who goes back to rocking in his chair and listening. But it does raise intriguing questions about how the remaining justices think about public confidence in the bench and judicial ethics. In other words, Williams v Pennsylvania offers a pretty nice window into how the court thinks about politicizing the judiciary, at a moment in which the judiciary could not be more politicized.


The facts of Williams are basically awful. In 1984, Terrance Williams killed Herbert Hamilton, and later that year he beat 56-year-old Amos Norwood to death. Both men were sexually abusing the teenage Williams, a fact that didn’t come out at trial. In one of his two trials Williams was sentenced to death. In that trial, the prosecutor chose to conceal evidence of the sexual abuse, most of which was revealed only in 2012. A lower court, opining on this prosecutorial misconduct, tossed Williams’ death sentence in 2012. The Pennsylvania Supreme Court reinstated it.

Williams, who is now 49, claims that his appeal before Pennsylvania’s Supreme Court denied him his constitutional right to due process of law. That’s because the chief justice of that court, Ronald Castille, personally approved the decision to pursue capital punishment back when he served as Philadelphia’s district attorney, and bragged in his campaign for the state Supreme Court about sending Williams and 44 others to death row. The argument is essentially that Castille should have recused himself and that—despite the fact that the state Supreme Court voted unanimously against Williams—the whole panel was tainted by Castille’s bias.

It is widely understood that one should not be both a prosecutor and a judge, a point made plain in an amicus brief supporting Williams filed by 16 former prosecutors and seven former appellate judges. The issue for the court today is whether to constitutionalize that recusal rule, and how to create a workable standard for when a judge is biased or appears that way, an undertaking the court is reluctant to wade into. You may recall that back in 2004, Justice Scalia offered up elaborate defenses of his refusal to step aside in a case that involved the vice president. The upshot is and was: Jurists are people, too.

Stuart Lev, an assistant federal defender in Philadelphia who is representing Williams, opens by explaining that “due process does not allow a district attorney to make the decision to seek the death penalty against the defendant, and then in the same case become a judge of the conduct of the prosecutor who carried out that decision and obtained that result.”


Lev is confronted several times by Justice Samuel Alito, who is worried about constitutionalizing what is essentially a judicial ethics issue. Alito gets some support in this concern from Justice Stephen Breyer, who observes that “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.”

Justice Sonia Sotomayor again takes on the role of the court’s criminal justice badass, pointing out that Williams didn’t know that the suppressed evidence of his sexual abuse “could form a very potent defense to a death penalty” and that the prosecutor who worked for then-District Attorney Castille “told the trial judge that there wasn't any independent evidence of sexual abuse by this man of other people,” an assertion that was simply untrue.

Sotomayor also tartly wonders, “At what point do we give meaning to the constitutional command that you can’t be prosecutor and judge? This is the ideal case for someone to make a due process claim, because the judge here actually signed his name to his review of the facts and his decision to seek the death penalty.”

Philadelphia Deputy District Attorney Ronald Eisenberg at one point suggests that the long amount of time—30 years—that separated Castille’s oversight of Williams’ death penalty case and his decision not to recuse himself from Williams’ appeal somehow softened the public sense that he was biased. Justice Anthony Kennedy, who has written passionately about the horrors of solitary confinement, almost explodes: “So the fact that he spent 30 years in solitary confinement actually helps the state?”


Almost all of the justices seem troubled by the fact that Castille stayed on the case, but they struggle to find a workable rule for recusal. “Judges are human beings—they have prior lives," Eisenberg says. “We don’t want to have a situation where the only people who can become judges and sit on cases are people with no prior experiences.” This too seems rather prophetic as Obama sifts through his long short list of replacements for Justice Scalia.

The issue not raised in Monday morning’s arguments is whether people running for high judicial office should be bragging about their death row stats in the first place. A major Reuters investigation from last year found that state Supreme Court justices who face elections are much more likely to affirm death sentences: “In the 15 states where high court judges are directly elected, justices rejected the death sentence in 11 percent of appeals, less than half the 26 percent reversal rate in the seven states where justices are appointed.” It’s this fact, and not merely the appearance of bias in a single case, that reveals the essential problem with judges running for office.

But at least for this morning, Williams stands for the proposition that on a 4–4 court, the appearance of impartiality and integrity matters. Now more than ever, it’s clear that asking justices to maintain their poker faces during ideological sandstorms is an unenviable but crucial part of the job.