Even though Supreme Court Justice Clarence Thomas last week only half-jokingly urged his colleagues to "shut up" and stop asking so many questions during oral arguments, it is not likely any of the other eight Justices will remain silent this week.
On Tuesday, the Court hears an important death penalty case, and on Wednesday the Justices will once again wade into the marsh that is the legal war on terrorism.
Both cases easily rank in any court observer's Top Ten list of significant disputes to be resolved by the Justices this term. Both represent the latest legal iterations of long-running legal debates over emotional, contentious issues. Both will give us better guidance about what sort of term it will be and what sort of Court we really have under the stewardship of Chief Justice John G. Roberts. Jr.
And if past is prologue both decisions almost certainly will ensure further litigation.
On Tuesday, the Justices tackle a capital case that oddly has drawn into its orbit O.J. Simpson and David Duke. Lawyers for a convicted capital defendant named Allen Snyder, a black man, claim that his prosecutor unconstitutionally excluded blacks from his jury in circumstances that could lead a reasonable judge to determine that Snyder was denied "equal protection" under the law. Snyder was convicted and sentenced to death in 1996 by an all-white jury.
Former high-profile Klu Klux Klansman David Duke is somewhat relevant because the case was heard in Jefferson Parish, La., where Duke still apparently has a large following. Former murder suspect and current robbery suspect O.J. Simpson is somewhat more relevant to Snyder's case, because his prosecutor told jurors to convict him so that he wouldn't "get away with it" like Simpson.
Snyder v. Louisiana can't be seen in a vacuum. The Supreme Court over the past half dozen years has had a devil of a time getting lower courts in the South - especially but not limited to Texas - to abide by their rulings in capital cases. That's because the Justices have in recent years consistently, almost relentlessly, limited the ability of prosecutors and lower court judges to exclude blacks from serving as jurors to blacks in capital cases. Don't be surprised, then, if those questions Justice Thomas doesn't want asked are more pointed when they are aimed at Louisiana than when they are aimed at Snyder's lawyers.
On Wednesday, the Court hears what a few weeks ago - before the Justices agreed to try to better define the scope of the Second Amendment - would have been the single most important cases of the term. Lawyers for two terror detainees are challenging the Military Commissions Act of 2006, a hastily-drafted law that was passed by a lame-duck Congress late last year. Among other things, the Act was designed to strip those detainees of the right of habeas corpus, the right to seek relief in federal court.
The detainees' lawyers say this right to redress of their grievances - like being held at Guantanamo Bay for years without charges - is guaranteed to them in the Constitution even though they are not citizens of the United States and have been designated, alternately, as "combatants" or "enemy combatants" in the war on terror. The White House and the Justice Department claim that the Congress was within its authority to narrow the scope of habeas relief because it is a statutory right, too, and because non-citizen, non-resident "combatants" do not enjoy the same protections the rest of us do.
Again, as we'll see in Tuesday's death penalty tussle, the Boumediene and Al Odah cases bring to the court much of the inter-branch baggage of the past half dozen years. Only twice before, since the Twin Towers fell, has the Supreme Court offered a substance decision on a legal matter involving the war on terror. In both instances, in 2004 and in 2006, a majority on the Court ruled against the government; against the White House's aggressive and sometimes excessive approach. And in both instances, the Congress and the White House fought back with new laws and new policies.
This is part of the reason why hundreds of detainees down at Guantanamo Bay still haven't been "processed" (i.e., tried and convicted) by military commission. The Court has been willing (even eager) to tell the other two branches how wrong they've been so far in depriving those detainees of certain rights. But, naturally, the Justices haven't been willing to give firm direction to the White House or lawmakers about how to do things right. And, naturally, the White House and Congress (until now) haven't exactly rushed to compromise on detainee rights
The two prior Court cases came when Justice Sandra Day O'Connor still had a vote. She's since been replaced by Justice Samuel A. Alito, Jr., who so far proven to be consistently more conservative (and more supportive of executive branch power) than was his predecessor.
Will Justice Alito change the voting dynamic on the Court? Will the Court once again send the terror-law policy makers back to the drawing board? We won't know for several months - maybe not even until the last week of June, when the Court customarily issues its most controversial rulings.
Until then, about the only thing you can make book on is that Justice Thomas won't utter a peep from the bench in either case. He can't really tell his colleagues to shut up. But he can continue to express his disdain for the centuries-old tradition of oral argument by sitting there mute, session after session, year after year, not realizing the joke is really on him.