Daily Archives: March 3, 2011

Justice Alito versus…the Supreme Court?

Justice Alito wears his heart on his sleeve. And he’s not afraid to take on the whole court to do it.

Yesterday, Justice Alito was the lone dissenting voice in the Supreme Court’s decision to allow Westboro Baptists to protest at military funerals. As Josh Blackman points out, though, it’s not his first time.

Last term, the Court decided United States v. Stevens which considered the constitutionality of a statute that criminalized the distribution of so-called “crush videos” (basically videos of killing cute fuzzy animals). This term, in Snyder v. Phelps, the Court decided whether the protests of the Westboro Baptists at the funeral of slain Marine Matthew Snyder were constitutionally protected. In both cases, 8 Justices found that the laws were unconstitutional. In both cases Chief Justice Roberts wrote a very narrow opinion protecting free speech, but leaving many questions open. In both cases, Justice Alito was the lone dissenter.

In each, his dissents have been emotional, leading to questions whether they are motivated by law or by emotion.

To quote from Snyder:

Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case.
Petitioner Albert Snyder is not a public figure. He is simply a parent whose son, Marine Lance Corporal Matthew Snyder, was killed in Iraq. Mr. Snyder wanted what is surely the right of any parent who experiences such an incalculable loss: to bury his son in peace. But respondents, members of the Westboro Baptist Church, deprived him of that elementary right. They first issued a press release and thus turned Matthew’s funeral into a tumultuous media event. They then appeared at the church,approached as closely as they could without trespassing,and launched a malevolent verbal attack on Matthew and his family at a time of acute emotional vulnerability. As a result, Albert Snyder suffered severe and lasting emotional injury.1 The Court now holds that the First Amendment protected respondents’ right to brutalize Mr. Snyder. I cannot agree.

This strategy works because it is expected that respondents’ verbal assaults will wound the family and friends of the deceased and because the media is irresistibly drawn to the sight of persons who are visibly in grief. The more outrageous the funeral protest, the more publicity theWestboro Baptist Church is able to obtain. Thus, when the church recently announced its intention to picket the funeral of a 9-year-old girl killed in the shooting spree inTucson—proclaiming that she was “better off dead”11— their announcement was national news,12 and the church was able to obtain free air time on the radio in exchange for canceling its protest.13

Balancing the rights of all parties is a difficult act at best. Adding the context of military funerals only complicates the issue. However, the questions remain: should justices decisions carry such heavy emotional appeal? Or should justice be blind and bereft of emotion?

Last: did all eight get it wrong? Or is Justice Alito up in the night?

(h/t Josh Blackman)

Life at 133 questions an hour; or, do the Supremes really care what the lawyers think?

Official portrait of Supreme Court Justice Cla...

Image via Wikipedia

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:

  • The relative number of questions asked is indicative. If both sides receive the same number of questions, the likelihood of reversal is 64 percent.
  • “But if the side seeking reversal gets 50 more questions than its adversary, the likelihood of a victory drops to 39 percent. And if that side manages to get the maximum number of extra questions in the study, which was 94, the likelihood of winning drops to 18 percent.”

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.