Monday, March 26, 2012

Obamacare oral argument at the Supreme Court

UPDATE DAY 2:  The transcript of day 2 of the oral argument is here.  Justice Thomas did not speak.  Pages 41 and 87 of the transcript are where Justice Scalia makes jokes that make people laugh.  So, Justice Scalia doubled his laugh total from day 1.  On page 88, Justice Breyer gets into the act and makes a joke.  For my money, Justice Kagen steals the show with an amusing bit of self-deprecation on page 90. 

The Supreme Court posted the transcript of the first day of the oral argument about whether Obamacare, to use a word Mr. Torvik likes, is constitutional.  The transcript is here. The Reader(s) of Thursday's post about Justice Thomas may be interested to know that Justice Thomas's silent streak remains alive and well.

Also alive and well is Justice Scalia's apparent campaign to get a laugh at every oral argument.  On pages 15-16 of the transcript, Justice Scalia tried to get a laugh by pointing out that federal court judges are stupid.  The justices were asking questions about what particular rule may, or may not, give them jurisdiction to hear the case.    Justice Scalia said,
what's going to happen is you're going to have an intelligent federal court deciding whether you are going to make an exception. And there will be no parade of horribles because all federal courts are intelligent.
Note that the transcript does not contain the word "laughter" after Justice Scalia's observation.  From this, I take it that this joke went over like a lead balloon.  Perhaps the joke went over poorly because people don't know whether laughing about lower court judges is appropriate at the Supreme Court.

Justice Kennedy, possibly unhappy that the halls of the Supreme Court were not ringing with laughter, then made a joke and got a laugh on page 36 of the transcript.  Justice Ginsberg was asking Solicitor General Donald Verrilli about the government's interpretation of the Anti-Injunction Act when Justice Kennedy cut in,
JUSTICE GINSBURG: So -- so, you agree that we would not -- if we agree with you about the correct interpretation of the statute, we need not decide the jurisdiction.
GENERAL VERRILLI: There would be no reason to decide the jurisdictional issue. 
JUSTICE KENNEDY: Don't you want to know the answer?
Justice Scalia, possibly not wishing to be outdone, then made another run at getting a laugh on page 40. The justices were asking the solicitor general whether the injuction at issue in a previous case was an injunction prohibiting the government from collecting a tax or if it was an injunction of the taxpayer preventing them from paying the tax. The exchange goes:
GENERAL VERRILLI: Well, in fairness, Justice Breyer, the United States did intervene in the -- in the Davis case and was a party, and so -- not as far as I'd like, I guess, is the answer.
JUSTICE SCALIA: Don't do it again, because I think that goes too far. I don't think that's restraining the collection of a tax. It's restraining the payment of a tax. (Laughter.)
JUSTICE SCALIA: You don't want to let that bone go, right?
I think we can all agree that jokes like these make it pretty clear that Justices Kennedy and Scalia should curtail their plan to hit the road and become a comedy duo in the tradition of Rowan and Martin.  The jokes might also be support for the idea that lawyers are simply not very funny.


  1. As you know, my reverence for the law knows no bounds, so I find these efforts at humor contemptible.

  2. I am unfamiliar with that concept.


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