"Quod gratis asseritur gratis negatur"
Sauron's attention is distracted away from the two hobbits making their way across Mordor, until it is too late. Image via Wikipedia
Justice Thomas is, quietly, laying groundwork for reviving and restoring sections of the Constitution long thought to be dormant, if not dead.
Not unlike a hobbit trekking to Mount Doom, as he has been compared, he is laying groundwork that sets back liberal causes, if not completely turns back the clock, several decades. [Read more...]
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All work and no play makes Jack a dull boy. And Chief Justice Roberts has taken that to heart.
On Monday, while the Supreme Court was taking oral arguments and handing down opinions, the Chief took several opportunities to poke fun and to shoot off a witty question.
After handing down a unanimous opinion rejecting AT&T’s argument that because corporations can be considered persons for free speech purposes, they can also be considered to have privacy rights like persons, too, Roberts, writing for the Court, took AT&T to task, denying that corporations have anything like “personal privacy” for purposes of FOIA (Freedom of Information Act). As reported by Slate writer Dahlia Lithwick, the Chief had started during oral arguments for the case:
[T]he chief spent the better part of the hour poking fun at AT&T’s claim that the adjective personal means the same thing as the noun person, such that the statute’s treatment of corporations as “persons” means that corporations are also somehow capable of getting “personal.” As he explained at argument, that claim makes no sense. “I tried to sit down and come up with other examples where the adjective was very different from the root noun,” he observed at the time. “It turns out it is not hard at all. You have craft and crafty. Totally different. Crafty doesn’t have much to do with craft. Squirrel, squirrely. Right? I mean, pastor—you have a pastor and pastoral. Same root, totally different.”
It didn’t stop at oral arguments, either. The opinion took a jab, too.
“The protection in FOIA against disclosure of law enforcement information on the ground that it would constitute an unwarranted invasion of personal privacy does not extend to corporations. We trust that AT&T will not take it personally.”
Catch the article, including when Justice Scalia got into the act, too, over at Slate.com.
APROPOS: court artist Art Lien added a few extra flourishes to his work on Monday to accentuate the lighter mood, drawing Justice Scalia as a cat and Chief Justice Roberts with a cob of corn in his hand.
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Curiously, to many, Justice Clarence Thomas rarely asks questions during oral arguments at the Supreme Court.
If at all.
Here’s a run down of his stats, as well as some other interesting numbers related
to questioning by Supreme Court Justices (according to Constitutional Daily):
5 – Years Clarence Thomas has gone without asking a question in the Supreme Court.
133 – Average questions per hour asked by Supreme Court justices.
2.22 – Average questions per minute.
209 – Total questions in Thomas’s favorite movie, Saving Private Ryan.
1.24 – Average questions per minute.
64% - Overall odds of winning a reversal in the Supreme Court.
39% – Odds of winning a reversal if asked 50 questions more than opposing counsel.
18% - Odds of winning a reversal if asked 94 question more than opposing counsel.
1 – Justices that have gone an entire term without asking a question.
And here is my favorite:
0 – Answers the Justices are sincerely interested in.
As it turns out, getting a lot of questions from the Supremes does not mean that they are interested in your reasoning. Quite the contrary. It’s more likely they don’t care.
A few years ago, a second-year law student at Georgetown unlocked the secret to predicting which side would win a case in the Supreme Court based on how the argument went. Her theory has been tested and endorsed by Chief Justice John G. Roberts Jr., and has been confirmed by elaborate studies from teams of professors.
“The bottom line, as simple as it sounds,” said the student, Sarah Levien Shullman, who is now a litigation associate at a law firm in Florida, “is that the party that gets the most questions is likely to lose.”
Not content to let a lowly law student’s theory rest, Judge Roberts–at that time not yet on the Court–did his own study and confirmed the findings. More questions does not equal success. The Justices aren’t talking to the advocate–they’re talking to each other.
The two studies do illuminate something about the nature of questions that Supreme Court justices ask lawyers for each side. In form, they are efforts by the justices to elicit information, clarifications and concessions from the lawyers. In reality, though, these arguments are for the most part attempts by the justices to persuade their colleagues.
“Quite often the judges are debating among themselves and just using the lawyers as a backboard,” Chief Justice Roberts said at Columbia Law School last year.
A third study, this time by empiricists, not lawyers or judges, found that, largely, Shullman and Roberts were right. They looked at 2,000 arguments and more than 200,000 questions. The conclusions were consistent and showed some interesting findings:
And that makes Thomas all the more interesting. Because he isn’t asking questions at all. Perhaps he knows the questions don’t matter?
As he has said else where, all the relevant arguments are in the briefings, and if he hasn’t been persuaded by them, oral arguments are not going to persuade him, either.
On the other hand, Justice Thomas prefers a more laid back approach.
“If I invite you to argue your case, I should at least listen to you,” he told a bar association in Richmond, Va., in 2000.
The current court isn’t exactly conducive to that, however, with Justices firing off questions almost faster than they can be answered. In the 20 years that ended in 1988, Justices asked an average of 133 questions per hour long argument.
(h/t NYT
and Constitutional Daily)
Large Numbers of Law, Week of 2/21/11.
Remember when President Obama took a shot at the Supreme Court during last year’s State of the Union address?
Go here to watch a short clip of it if you don’t.
President Obama (aka POTUS) chided the Supreme Court for their ruling in Citizens United, which overturned aspects of then current campaign finance law, specifically cutting off the shackles on corporations to allow them to spend money independently in candidate elections. He said:
“Last week, the Supreme Court reversed a century of law to open the floodgates for special interests — including foreign corporations — to spend without limit in our elections,” Obama said. “Well I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities. They should be decided by the American people, and that’s why I’m urging Democrats and Republicans to pass a bill that helps to right this wrong.”
Justice Alito, as you can see in the video above, shook his head and mouthed what is widely believed to be “Not true, not true…”
Whether it was “not true” has been debated much since; the question remains: will more members of the Supreme Court (SCOTUS, if you didn’t catch it yet) skip this year?
Traditionally, the court maintains an aura of non-partisanship. It’s job is to interpret the law against the constitution, not to play a partisan role in making the law. This isn’t to say that the members of the court don’t lean one way or the other. But their job is not a partisan one.
When the President takes partisan cheap shots at the Justices of the Supreme Court, to their face, there isn’t much a Justice can do while maintaining his or her dignity. Justice Alito has already stated that he will join Justice Thomas and Justice Scalia in skipping this year’s event; will Justice Roberts avoid it, as well?
Tune in tonight at 7 PM MST, 9 PM EST, to find out.
Remember this one? This case deals with series of laws passed in Arizona in response to the failure of the federal government to enforce federal immigration laws. As summarized by the ACLU in September:
As part of a comprehensive overhaul of the immigration laws, Congress adopted a series of carefully calibrated measures, beginning in the mid-1980s, to enforce the federal bar on hiring unauthorized immigrant workers while preserving the civil rights of immigrant and minority communities. Unsatisfied with these efforts, Arizona adopted its own law imposing far more severe sanctions on employers who hire workers that Arizona believes are unauthorized to work, and requiring employers to participate in a federal employment verification program that the federal government chose not to make mandatory.
The question of the case is whether Arizona has the power to enact certain laws through the “licensing” provision of the federal law. Yesterday, the Supreme Court held oral arguments on the case (a transcript is here).
As Josh Blackman notes, Justice Scalia went straight to the licensing issue during the arguments and “remarked that the “through licensing” provision is really the only avenue the federal government left open for the states to deal with immigration.” Because no one thought, when Congress enacted the federal law, that the federal government would fail to enforce the law, Arizona was left with only limited means of remedy.
JUSTICE SCALIA: That would be remarkable
only because nobody would think that with this scheme in place, the Federal Government would not enforce it. Of course no one would have expected that. But what Arizona says has occurred here is that the scheme in place has not been enforced, and Arizona and other States are in serious trouble financially and for other reasons because of — of unrestrained immigration. And therefore, they had to take this very massive — I agree this step is massive, and one wouldn’t have expected it to occur under this statute, but expectations change when the Federal Government has — has simply not enforced the immigration restrictions.
The Justices proceeded to debate, and discuss, the meaning of the word “licensing” and whether this really was the only outlet for Arizona to act. Check out a good summary and a few choice clips from the transcript at Josh Blackman’s blog.
Overall, prognosticators seem to think that the Justices leaned towards Arizona, predicting a 5-3 win for the state. Justice Kagan was not on the bench for the arguments.
Justice Kennedy, consistently a swing vote on the court, remarked that the state’s position–requiring that the voluntary federal E Verify program be mandatory–seemed to be at odds with federal policy. “You’re making it mandatory. That is almost a classic example of doing something inconsistent with the federal requirement.”
Apropos: at least one of the Justices did not seemed concerned with the licensing issue. Justice Sotomayor seemed more concerned with the issue of federal preemption. (She also made a faux pas when she referred to “illegal aliens,” quickly correcting herself with “undocumented aliens,” as she had used in previous opinions.)
And now for something completely different, and good for a chuckle, too.
The Volokh Conspiracy is running a caption contest for this photo:
The caption winner so far?
“You don’t need to see my birth certificate.”
“I don’t need to see your birth certificate.”
Elena Kagan was sworn-in as fourth woman to sit on the US Supreme Court, today, and the third currently seated female justice. 
And Antonin Scalia tripped, but is ok…in case you were wondering.
(Rafael Suanes / MCT / June 29, 2010)
Elena Kagan‘s nomination went to the floor of the senate today. Her nomination to our country’s highest bench will be debated on the floor, but her confirmation is all but assured. In fact, with five Republicans already stating that they will vote for Kagan’s nomination, the debates will have less to do with her being on the bench and more to do with the posturing of Senators for C-SPAN and their home town voters. So, barring a major cataclysm or revelations that Kagan is an illegal alien, Kagan will soon take her seat on the U.S. Supreme Court…and will never need another job interview, again.
Oh, and I suppose I should note the odd Democrat that has decided to vote against Kagan. Democratic Senator Ben Nelson of Nebraska has decided to side with the majority of Republicans in voting against Kagan. He’s citing “social issues” as the reason. He said he had:
“heard concerns from Nebraskans regarding Ms. Kagan, and her lack of a judicial record makes it difficult for me to discount the concerns raised by Nebraskans, or to reach a level of comfort that these concerns are unfounded.”
Previous Coverage at Law After the Bar:
Lawyers “enable other people to produce & to go on with their lives efficiently & in an atmosphere of freedom.” http://ow.ly/2gJxg
I’ll make no secret of it–in my limited interactions with the illustrious members of the US Supreme Court, I’ve come to the conclusion that Justice Clarence Thomas would be the most enjoyable to
Even in the portrait with his fellow justices of the Supreme Court, Thomas looks more relaxed.
hang out with. At a Q&A with Chief Justice Roberts, when asked about working with the other justices of the Supreme Court, he indicated, if memory serves me, that Justice Thomas was one of his favorites, as well, because of the warm personality he brings to the Supreme Court’s chambers. His personality is warm, honest, and ingratiating, and in contrast to his cold-hearted originalism, he is the one who seems most interested in average America.
It is ironic, in some respects, that Justice Thomas votes, and writes, most often of all the judges in favor of the conservative principle of originalism. While Scalia, the justice who has most and best articulated originalism, has been accused of being a “faint-hearted” originalist, Justice Thomas has never had a problem calling for a return to what the Constitution meant when written. Whether you agree or not, this can be perceived as a cold response to the changes modern America has seen since the drafting of the Constitution some 234 years ago, and it is definitely a far cry from President Obama’s judicial philosophy that appoints jurists with “empathy.”
Is it really, though? Recently, Justice Thomas gave the key note address at the Utah State Bar summer convention. His reason for coming (and for the motor home he drives across the country on vacation when the Court is not in session):
“I’m convinced,” he said, “that part of (this job) is that when you consider the consequences of the decisions that we make, it does weigh on you and it does show you that there’s something so important that you’ve got to get it right. It does have an effect on you.
“(The Supreme Court) truly is a marble palace (because) we’re isolated. We’re isolated from the politics, we’re isolated from the city and in a lot of ways we’re isolated from the country. These trips allow me to come out and see the people who really matter in our government, and that is you all.”
For an originalist, this belies the cold-hearted rationale that would purportedly accompany a judicial philosophy that disregards the immediate plight of the plaintiff in favor of what the law says, blind and dispassionate. In my reading, it displays a great deal of empathy for Americans and a concern and awareness of the place that the Supreme Court has in American life.
(J. Scott Applewhite, Associated Press)
However, despite this, Justice Thomas does not seem to think that this empathy means that the Court should, or does, play politics. Ten years after Bush v. Gore, the decision that ended the 2000 election and allowed George W. Bush to win the White House, Justice Thomas seemed to still smart from accusations that the Court was playing politics with the decision.
“I think (the politics) about Bush v. Gore is more (a creation) of what the media said about Bush v. Gore, which I think is unfortunate,” he said. “I think we have a tendency in this country to characterize institutions in ways that fit in a particular mode and fit a preconceived notion. … The interesting thing is, if you ask the members of the court, they may disagree, they may be upset, they may be passionate, but they would not say it’s politics.”
For a man often accused of being the courts quietest and most conservative justice, he evidently is willing to make his opinions about how the court, and his place on it, should be seen, or at least how he would like it seen. It may require the passage of time to show his real effect on the Court and on America, but for now, he is among the most personable Justices I know, on or off the court. And despite his dispassionate rulings from the bench (“The job of the judge is to figure out what the law says, not what he wants it to say,” Thomas has said), he is probably the justice most in touch with real America.
(Thanks to Deseret News)
