Judicial displays of tension

Supreme Court justices never waste an opportunity to deny the existence of any strain between the nation’s highest jurists, but sometimes tensions are hard to hide – even on the bench.

That was apparent during Monday’s oral arguments in the case of Ali v. Federal Bureau of Prisons, when Justice Stephen Breyer – who is known to occasionally ask questions that more resemble orations than queries – apparently irked fellow Justice Antonin Scalia.

In an attempt to understand the congressional intent behind an ambiguously-worded federal statute, Breyer said the following to Kannon K. Shanmugam, assistant to the solicitor general representing the government:

“I’m sitting in Congress,” Breyer said, “I read this statute, I think maybe they were talking about customs people and the like. Now, there is this other word in there, that’s true. So we look up, where does the other word come from? The other word comes from Judge [Alexander] Holtzoff. He explained it, we don’t have to guess. We can read his explanation. His explanation comes in a paragraph having to do with customs and excise, and beginning with, I’m talking about customs and excise, and the additional proviso as special reference, where they use this phrase, and then he says it’s all supposed to be like the Crown Proceedings Committee in England in 1927, which in fact had nothing to do with anybody but customs and excise.”

Apparently, Scalia grew impatient with Breyer’s question, and DC Dicta sensed more than a bit of irritation in Scalia’s voice as he interjected: “Do the members of Congress who voted on this language, when it was presented to them, did they even know who Judge Holtzoff was?”

After Shanmugam gave a few thoughts about the legislative intent, Breyer, visibly angered, shot back.

“I would suspect at that time Judge Holtzoff was a pretty well known person in the legal community and I would suspect … if we are guessing at such a thing that quite a few did know who he was,” Breyer said, his voice slightly raised. He was looking at Shanmugam but was clearly speaking to Scalia. “And I suspect that when Congress passes a technical bill, they are interested in the views of the Department of Justice and these were those views.”

“So if we are going to play a magic game that we don’t pay attention to what sheds light on it, fine, then we don’t,” Breyer added, “but I would.”

We are sure it was all peace and make ups afterwards…


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