Cat vs. machine.

Ralph Waldo Emerson supposedly said that if you "build a better mousetrap, the world will beat a path to your door." However, the employees at the Henderson County, North Carolina courthouse have discovered that the best way to get rid of a rat infestation is not a trap but  a cat. The Hendersonville Times-News carries the story of how the courthouse rat infestation was solved by a cat named Mr. Jingles. The story does not mention how Justice Thomas feels about this form of capital punishment. From what I can tell neither Alexander Hamilton nor James Madison ever built a mousetrap. Perhaps that makes it likely that the Framers  were pro-cat.

Justice Thomas: Liberal?

Over at Slate, freelance writer Mark Joseph Stern, has an article examining the supposedly surprising jurisprudence of Justice Thomas:

Supreme Court Justice Clarence Thomas is frequently accused of being a partisan hack, a conservative lackey serving only the interests of the Republican Party. His votes are often portrayed as products of political ideology rather than constitutional philosophy, a practice he only encourages with his forays into political commentary. But as his recent opinions in Alleyne v. United States and the Myriad gene-patenting case illustrate, Thomas is much more than a Tea Party mouthpiece. That his views skew conservative is a product not of partisanship but rather of his deep, occasionally confounding dedication to originalist theory. And sometimes that dedication leads this already idiosyncratic justice to cast votes that would please Earl Warren.

Reader(s)™ will recognize this as a recurring theme of this blog, and I'm happy to see this published at Slate, which is generally a hotbed of the cynical, personality-focused coverage of the Supreme Court that I detest.

But the article contains at least one egregious error in its discussion of Justice Thomas's views on the Eighth Amendment, which Mr. Stern says include approval of "astonishingly torturous methods of capital punishment":

More than any justice in history, Thomas is an originalist, ruling exclusively by the letter of what he views as the Founders’ original intent in writing the Constitution. Because the Founders, for example, condoned “public dissection” and the “embowelling [sic] alive, beheading, and quartering” of prisoners, so too does Thomas.

This is laughably incorrect. The supposed source for this assertion is Justice Thomas's concurrence in Baze v. Rees, but Mr. Stern interprets the concurrence, um, incorrectly. Justice Thomas does discuss "embowelling alive, beheading, and quartering" of convicts, but not as examples of practices the Founders condone. On the contrary, he discusses these practices as the very "cruel and unusual" punishments he believes the Eighth Amendment was intended to outlaw:

That the Constitution permits capital punishment in principle does not, of course, mean that all methods of execution are constitutional. In English and early colonial practice, the death penalty was not a uniform punishment, but rather a range of punishments, some of which the Framers likely regarded as cruel and unusual. Death by hanging was the most common mode of execution both before and after 1791, and there is no doubt that it remained a permissible punishment after enactment of the Eighth Amendment . “An ordinary death by hanging was not, however, the harshest penalty at the disposal of the seventeenth- and eighteenth-century state.” Banner 70. In addition to hanging, which was intended to, and often did, result in a quick and painless death, “[o]fficials also wielded a set of tools capable of intensifying a death sentence,” that is, “ways of producing a punishment worse than death.” Id., at 54.

One such “tool” was burning at the stake. Because burning, unlike hanging,  was always painful and destroyed the body, it was considered “a form of super-capital punishment, worse than death itself.” Id., at 71. Reserved for offenders whose crimes were thought to pose an especially grave threat to the social order—such as slaves who killed their masters and women who killed their husbands—burning a person alive was so dreadful a punishment that sheriffs sometimes hanged the offender first “as an act of charity.” Id., at 72.

Other methods of intensifying a death sentence included “gibbeting,” or hanging the condemned in an iron cage so that his body would decompose in public view, see id., at 72–74, and “public dissection,” a punishment Blackstone associated with murder, 4 W. Blackstone, Commentaries 376 (1769) (hereinafter Blackstone). But none of these was the worst fate a criminal could meet. That was reserved for the most dangerous and reprobate offenders—traitors. “The punishment of high treason,” Blackstone wrote, was “very solemn and terrible,” id., at 92, and involved “embowelling alive, beheading, and quartering,” id., at 376.

* * * 

Although the Eighth Amendment was not the subject of extensive discussion during the debates on the Bill of Rights, there is good reason to believe that the Framers viewed such enhancements to the death penalty as falling within the prohibition of the Cruel and Unusual Punishments Clause.

So, while the article is a welcome corrective to the usual lazy reportage on Justice Thomas, it could sure use some fact checking.

Whatchu talkin'bout Perfessor?

I have been reading The Passage of Power: The Years of Lyndon Johnson, Robert A. Caro's fourth volume in his biography of former President Lyndon Baines Johnson. It is fantastic as are the other three volumes that have been published so far.

On page 352 of the book there is a scene in which President Johnson gets angry at Horace Busby. Mr. Busby was a longtime aide of President Johnson. What had Mr. Busby done?  He had questioned the conclusions reached by two economists on President Johnson's staff, Kermit Gordon and Walter Heller. Unlike Mr. Busby, Mr. Gordon and Mr. Heller did not work for President Johnson before he became president. Instead, Mr. Gordon and Mr. Heller were brought into government by President Kennedy. President Kennedy favored hiring people from Harvard because he felt "you can't beat brains."

Our long national nightmare is over

According to Scotusblog's Twitter feed and the Washington Post, Justice Thomas's seven-year streak of not speaking at Supreme Court oral arguments is over.  We covered Justice Thomas's streak here.  Apparently Justice Thomas spoke up in order to put down the competence of graduates of Yale's law school.  Justice Thomas, of course, is one of them.

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. 


ORIGINAL POST:
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?

(Laughter.) 

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.)

GENERAL VERRILLI: Well - 

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.

Silence is...?

Last month, the New York Times ran an article about the fact that Justice Thomas has not asked a lawyer a question during oral argument since 2006. The gist of the article is that Justice Thomas's refusal to ask questions is bad. It also seems to suggest that Justice Thomas has not been entirely forthcoming about why he doesn't ask questions because his reasons as to why he doesn't speak at oral argument are "various and shifting." The premise of the article is the proverbial dog that won't hunt. Justice Thomas's silence isn't bad and the reasons he offers for his silence are not "various and shifting." They aren't even bad reasons.

As to the "various and shifting" explanations, the article cites to three different explanations: (1) Justice Thomas is self-conscious about the way he speaks; (2) he thinks the courteous thing to do is let the lawyers actually argue their case; and (3) he finds it difficult to get a word in edgewise. None of these are bad reasons for not asking a question. Moreover, I note that none of these reasons contradicts any of the other reasons and aren't really "shifting" as most people would understand the term. Items 2 and 3 seem to compliment each other in that some of the other justices ask a lot of questions and Justice Thomas may feel that some amount of time ought to be given to the arguments that the lawyers intended to make rather than just making them answer questions.

Sometimes these questions are not particularly useful. For example, some of the Supreme Court justices use oral argument to tell jokes. Justice Scalia, for example, gets a little over one laugh per argument. It would not hurt anything if there were a few less jokes at oral argument and a few more minutes of lawyers making the argument they intended to make.

In any event, Justice Thomas is certainly correct that his colleagues ask a lot of questions. Mr. Torvik recently posted about the case of Pacific v. Valladollid. The case was a 9-0 decision. This indicates the case was not very difficult or contentious. The transcript of the oral argument is here. The argument portion of the transcript is 59 pages long and three lawyers appeared to argue on behalf of the petitioners and respondents. Out of 59 pages, there are 4 pages where a lawyer isn't asked a question (pages 12, 27, 57, and 60). Some of the pages, for example 8, 14, 18, 24, and 36, are mostly questions. Justice Scalia's one laugh is on page 32. If there are only 4 pages where a lawyer is not being asked questions in a unanimous case, I suspect that there are more questions in cases that aren't unanimous.

Justice Thomas is not alone in thinking that too many questions actually derails an argument. When Eighth Circuit Court of Appeals Judge Donald P. Lay died, the folks at the Powerline blog memorialized him. One of the things the post noted, was an occasion when Judge Lay asked a judge to stop asking so many questions so that Judge Lay could hear the argument that the lawyers wanted to make.

I think that Judge Lay was trying to make the point that while one purpose for oral argument is to get answers that a question the judge may have, another point to oral argument is to give the parties an opportunity to feel like they had their day in court. That is, an opportunity to advance the facts and/or legal points that are important to their client. Justice Thomas's second explanation seems to agree with this.

I have not argued in front of the Supreme Court. However, I have argued in front of the appellate courts, which have 3 judges asking questions. I have had the experience of realizing that the questions I am getting aren't designed to test the strength of my argument. Instead the questions are designed to show me that a particular judge isn't going to accept my argument. That type of questioning doesn't have much, if any, utility. If the main point of a question is just to show me that my client is going to lose, I would just as soon wait until the court issues an opinion on that topic. In that regard, Justice Thomas's decision not to ask questions is correct.

Justice Thomas stands up for the little guy

Recently, the Supreme Court decided the case of Pacific v. Valladolid.  It is a decidedly unsexy case, and its ruling did not provoke any headlines in the New York Times. The unsexy issue: whether the Longshore and Harbor Worker's Compensation Act extends to an employee who died on land rather than at sea, if the death had a "substantial nexus" to his work at sea. According to the Supreme Court, it does.

Why is this bloggable?

First, the opinion was unanimous.  There was no ideological split, though Alito and Scalia did file a separate opinion concurring in part and concurring in the judgment.

Second, the case came up from the Ninth Circuit, which the Supreme Court famously likes to smack down.  And the Ninth Circuit's opinion was in conflict with two other circuits which had decided the issue, so it may have seemed ripe for a smackin'.

Third, the losing party in this case was Big Oil, which (along with all other big businesses) the Supreme Court supposedly kowtows to.

Fourth, the majority opinion, written by Justice Thomas, uses textual analysis to reach a result that favors the little guy—in this case a manual laborer whose job was known in the trade as a "roustabout."  This would seem to refute the argument that textualism is just a smokescreen that judges use to get the results that they subjectively prefer.  (For another example, see this prior post.)

In other words, this case should make you question your cynicism.

Probably a mistake?

As part three of our ongoing series on phone calls made by wives of Supreme Court justices, Ginni Thomas has decided that calling Anita Hill was "probably" a mistake. Sadly, the article doesn't mention when this particular insight came to Ms. Thomas.

More on the Thomas/Hill voicemail.

As you note, Mr. Torvik, the story of Ginni Thomas calling Anita Hill and asking her to apologize for her testimony at Justice Thomas's confirmation hearing is strange. However, it seems to me that Ms. Hill's behavior is a lot less strange.

As memory serves, and Oprah Magazine confirms, Ms. Hill received death threats as a result of her testimony. I suspect that she also received threats of a less drastic nature. One can imagine that, at the time of her testimony, she was told to forward these threats to the FBI. So, twenty-years later, she receives a call from a woman claiming to be Ginni Thomas and asking Ms. Hill to apologize and provide "some full explanation of why you did what you did with my husband.”

Ms. Hill, and I think understandably, found this odd. After reflecting on it, she provided the voicemail to her employer's security department and instructed them to contact the FBI perhaps per a protocol from the days when she was receiving threats. That doesn't seem strange to me.

What does seem strange is how this came to the attention of the New York Times. The article doesn't say. If Ms. Hill brought it to their attention, that would be very strange. But, perhaps it came from some other, less strange, source.

I agree with David Bernstein over at the Volokh Conspiracy, that if Ginni Thomas truly was seeking an apology she should have chosen a better means of communicating that other than a voicemail. That part of the story is very strange.

This renewed interest in the Hill/Thomas controversy doesn't seemed to have done much for Ms. Hill, Justice Thomas, or Ms. Thomas. On the other hand, it has arguably worked out well for other people, and not just bloggers. Lillian McEwen, a woman who dated, and apparently worked with, Justice Thomas in the 1980s, is looking for a publisher for her memoir. Ms. McEwen claims that Justice Thomas was "obsessed" with porn during the time they dated and worked together. This time period coincides with the period when Ms. Hill worked with Justice Thomas. She, as the links indicate, has gotten some free press about her proposed memoir. I suspect a publishing deal will not be far behind.

If one is inclined to believe Ms. Hill, then Ms McEwen's revelations, are more support for Ms. Hill's testimony. Although, I suppose it is support that comes is 19 years late. If one is inclined to believe Justice Thomas, than Ms. McEwen's story is suspect because it comes after such a long delay and is, with all due respect to Ms. McEwen, the only thing that would make her memoir interesting to a publisher.

Given that the voicemail and Ms. McEwen's allegations really just give us an opportunity to relive the days when the Senate testimony took about things like pubic hair on Coke cans and Long Dong Silver, I would have to say that the voicemail has had the opposite of its intended effect.

Justice Thomas's wife leaves Anita Hill a voice mail asking for an apology ...

and Anita Hill calls the police!

These are very strange people.