Tag Archives: Supreme Court

And the funniest guy on the Supreme Court is…

Roberts

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

Official portrait of Supreme Court Justice Cla...

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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:

  • 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.

Precedent for Presidential Refusal to Defend Statutes the Administration Believes to be Unconstitutional

U.S. Supreme Court

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Initially I questioned the Obama Administration’s refusal to defend DOMA. On reflection, however, there may be precedent for their actions. Ilya Somin points out several precedents in both Republican and Democratic administrations that support the premise that the President may be justified in not supporting legislation he deems unconstitutional.

During the Eisenhower, Kennedy and Truman administrations, the presidents, in one form or another, refused to defend separate-but-equal facilities in schools and hospitals. The Ford Justice Department refused to defend the post-Watergate campaign finance law, much of which was subsequently upheld by the Supreme Court. The Reagan administration refused to defend the independent counsel law, a law subsequently upheld by the Supreme Court by a 7-to-1 vote. It also refused to defend the one-house legislative veto of many executive actions; in that case, the administration was more successful, winning 7–2 in the Supreme Court. The Clinton administration refused to defend a federal law mandating the dismissal of military personnel who were HIV-positive. The George W. Bush administration refused to defend a federal law that denied mass-transit funds to any transportation system that displayed ads advocating the legalization of marijuana. And in the George H.W. Bush administration, the Justice Department refused to defend a federal law providing affirmative action in the awarding of broadcasting licenses — a law subsequently upheld by the Supreme Court by a narrow 5–4 vote.

Check out his full comments on the Volokh Conspiracy. And the last word?

The fact that Republican administrations have done the same thing in the past doesn’t necessarily prove that Obama’s decision was justified. After all, as Obama himself would be quick to agree, Republican administrations make plenty of mistakes too.

The Volokh Conspiracy » Precedent for Presidential Refusal to Defend Statutes the Administration Believes to be Unconstitutional.

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Federal Judge Rules “individual mandate” Unconstitutional

It won’t be the last stop  for President Obama’s signature health care bill, the Affordable Health Care for America Act, but it was a road bump that I’m sure the Obama Administration could have done without. Today, a federal judge in Virginia ruled that the “individual mandate,” which mandates health coverage for most Americans by 2014, is unconstitutional. The judge did not address the entire law, such as parts dealing with expansion of Medicaid coverage.

Although the case is eventually headed to the Supreme Court, opponents of the law were pleased with the ruling.

“I am gratified we prevailed,” Virginia Attorney General Ken Cuccinelli said in a statement. “This won’t be the final round, as this will ultimately be decided by the Supreme Court, but today is a critical milestone in the protection of the Constitution.”

Ken Cuccinelli's suit argued that individual mandate is an unconstitutional expansion of the Commerce Clause. | AP Photo

Interestingly, health care stocks rose at the news, with Standard & Poor’s 500 Health Care Index up 0.5 percent at noon New York time.

The ruling, according to the WSJ, is the first against the law. The judge stated that the law’s requirement that most Americans carry insurance or pay a penalty “exceeds the constitutional boundaries of congressional power.” Two other cases have ruled in favor of the law.

Despite the plaintiff’s request, Judge Hudson did not issue an injunction against the law. Although the individual mandate does not go into effect until 2014, aspects of it will take effect as soon as January.

In his opinion, Judge Hudson reasserted sounded more than a little like the late Milton Friedman:

“At its core, this dispute is not simply about regulating the business of insurance — or crafting a scheme of universal health coverage — it’s about an individual’s right to choose to participate.”

Find the opinion text here.

Chamber of Commerce v. Whiting before the Supremes

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.)