Line by proxy

When I first read that people were already in line to hear the Supreme Court oral argument about same sex marriage, I thought that some hardcore law fans were camped outside the Supreme Court.  However, as the New York Times makes clear, at least some of the people in line are not interested in the case.  Intead, those folks are proxies hired by companies that pay people to stand in line.  Mr. Torvik and I have missed out on yet another business opportunity.

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.

Live from the courtroom!

Perhaps I've been under a rock, but I learned just today that some federal courts are testing a program to videotape civil hearings and trials and put the videos up on the web for the general public to view. The videos are available here. Anyone who thinks trial lawyering is glamorous work should take a look. Trials are the apogee of a trial lawyer's career. And they are, even in the best of cases, quite boring to watch.

Affirming humanity at the Supreme Court

The oral argument at the Supreme Court over Arizona's immigration enforcement law has "utterly depress[ed]" Linda Greenhouse of the New York Times.

Not, she tells us, because the Court seems poised to uphold the law (which she presumably disfavors on policy grounds). No, Greenhouse's depression was caused by "the failure of any participant in the argument, justice or advocate for either side, to affirm the simple humanity of Arizona’s several hundred thousand undocumented residents."

Let me get this out of the way, so as not to contribute to anyone's mental illness: I affirm the humanity of Arizona's several hundred thousand undocumented residents. They are human beings, entitled to be treated with all the respect and dignity that this status necessarily entails.

But what, exactly, did Ms. Greenhouse—a seasoned journalist who has covered the Supreme Court for decades—expect? Perhaps that the Solicitor General would clear his throat, take a moment to compose himself, and say:

Let's take a moment to talk about something other than the federalism issues in this case. Let's talk about humanity. Let's talk about our feelings. Because if we don't, someone in the gallery might get sad. Lookie here: I have a visual aid. It is a picture of a four-year old girl's face. As you can see, her beautiful brown eyes are gigantic. [Clears throat as he chokes back tears.] Stare into them for a moment, Justice Alito. This four-year old is an American citizen because she was born here. But her mother is not an American citizen. She's an "illegal"—an undocumented resident of Arizona who may be targeted under this law. This law may or may not be "constitutional," but I beseech you, Justice Scalia, have a heart!!

What depresses me is that Ms. Greenhouse did apparently expect something like this.

Thankfully, "Lady Madonna" just came on my iTunes shuffle, and I can't stay sad when that song's playing. Ms. Greenhouse, if you're reading: I recommend giving it a spin to help get you out of your funk.

In case you were wondering when the F-Bomb was last dropped on the Supreme Court.

The New York Times has the answer.  The article notes that lawyers and justices seem unwilling to use the word even when the case hinges on its use.  I find that odd.  What about you Mr. Torvik?  Any fear of using profanity in court if the profanity is part of the case?

President Clinton has some ignorant thoughts on the Obamacare case

In an exclusive interview with ABC News, Clinton complains that the conservative justices on the Supreme Court "didn’t make the plaintiffs, the people that want to strike the law down, prove their case":

“Nobody asked, for example, do they want to overturn a case called Wickard v. Filburn in 1942,” Clinton said. “Where in the beginning of World War II, where we were still coming out of the Depression, a farmer was told and the Supreme Court upheld the ability of the federal government to limit his ability to grow food on his own farm for personal consumption. Because they said it affected the aggregate amount of food consumed in interstate commerce and the price of food.”

This is a pretty odd statement, as it rests on the idea that the litigants and justices simply forgot about the most famous commerce clause case. This is easily disproved. Wickard was specifically discussed several times in Tuesday's arguments, each time in cross-examination of the challengers of the law.  For example, here's Chief Justice Roberts questioning Paul Clement:

Well, Mr. Clement, the key to the government's argument to the contrary is that everybody is in this market. It's all right to regulate Wickard -- again, in Wickard against Filburn, because that's a particular market in which the farmer had been participating. 

Everybody is in this market, so that makes it very different than the market for cars or the other hypotheticals that you came up with, and all they're regulating is how you pay for it. 

MR. CLEMENT: Well, with respect, Mr. Chief Justice, I suppose the first thing you have to say is what market are we talking about? Because the government -- this statute undeniably operates in the health insurance market. And the government can't say that everybody is in that market. The whole problem is that everybody is not in that market, and they want to make everybody get into that market. 

No surprise, the case was also cited several times in each of the briefs.

So, even leaving aside the merits of Clinton's argument that Wickard is controlling (hint: it is not), it seems that President Clinton doesn't really know what he's talking about. Unless, of course, this is just politics.

 

If it is so obvious that Obamacare is doomed, why do they bother with a third day of hearings?

I first started reading Slate when I was in law school.  I don't recall how I found out about it, but the feature that caught my attention was "Supreme Court Dispatches."  The dispatches were a weekly feature that would provide a report on what happened at the Supreme Court oral argument that  week.  Eventually, the dispatches stopped coming out every week and now only come out on well-publicized cases.

I thought about the Supreme Court Dispatches yesterday when the various media reports came out about how Obamacare is doomed based on yesterday's oral argument.  For example, CNN legal analyst Jeffrey Toobin says that the individual mandate is "doomed" based on how the oral argument went.  Ezra Klien of the Washington Post suggested that the apparently inevitable striking down of Obamacare might not have happened if Justice Kagen was still Solicitor General.

Predicting how the Supreme Court would rule based on oral argument was a frequent part of the Supreme Court Dispatches.  It was also frequently wrong.  For example, when reporting on Fitzgerald v. Barnstable School Committee et. al., Dahlia Lithwick predicts that the poor kindergartner who was sexually harassed on a school bus is going to lose.  Then the opinion came out and the student won in a unanimous opinion.  Ms. Lithwick's colleague, Emily Bazelon, wrote a piece predicting that the employee in CBOCS West, Inc., v. Humpries, would lose his retaliation claim because the Supreme Court's "right flank could use this case not only to block suits for retaliation like Humphries', but also to set the stage to make it ever harder to sue for discrimination under other laws."  The Supreme Court ruled 7-2 in the employee's favor.  Ms. Lithwick predicted that the "the most business-friendly Supreme Court in decades" would rule for big business in Wyeth v. Levine.  Instead, big business lost a 6-3 decision.  Ms. Lithwick also predicted that historians would use the case of Safford Unified School District #1 v. Redding as an example of  "not getting it" because the oral argument so badly for the student who was subjected to a strip search because she brought prescription-strength ibuprofen to school.  The student won a 8-1 decision.

The point of this post isn't that Ms. Lithwick, Mr. Toobin, and Ms. Bazelon are terrible at predicting what the Supreme Court will do (at least that is not the intended point).  Instead, my point is that it is silly to try to predict how a case will come out based on oral argument and people should ignore any predictions based on oral argument.  All oral argument does is demonstrate that some of the justices like to watch lawyers respond to tough questions (and make jokes).  Fans of Obamacare (the statute, not the word) should not despair that the law will be struck down and foes of Obamacare should not be too encouraged by the fact that the Solicitor General faced some tough questions.  I am biased, but I still think the best prediction on the outcome of the case was made almost two years ago.

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.