The race for the funniest justice begins!

It wouldn’t be oral arguments at the U.S. Supreme Court without Justice Antonin Scalia inserting a little levity into the situation. But he wasn’t the only funny one yesterday.

During oral arguments in Locke v. Karass – a case considering whether a union violates the First Amendment by charging non-members fees to cover extra-unit litigation – James Young, who represents the non-union employee, was at the podium when Chief Justice John G. Roberts made the point that in an insurance situation, people pay for fees associated with activities – including litigation – that they may not agree with. “Do you concede that case?” Roberts asked.

“I don’t think I would concede that premise of your question,” Young answered.

Scalia jumped in.

“The Chief Justice’s question says: Can . . . a local that is certainly on the basis of past experience not going to need this insurance nearly as much as other locals enter into an insurance arrangement with other locals to buy the insurance for all of the locals even though it knows that it won’t benefit very much from that insurance policy?” Scalia asked.

“I’m sorry, I misunderstood,” Young said.

“He was trying to help you,” Scalia said to Young of Roberts’ question, drawing laughs.

“And I’m sorry, Chief Justice Roberts,” Young said.

“You should have said: ‘Yes, Mr. Chief Justice,'” Scalia continued. More laughs.

“I appreciate the help, Mr. Chief Justice, and your pointing that out, Justice Scalia,” said Young, full of judicial contrition. After a short pause he added: “Yes, Mr. Chief Justice.”

Then Justice John Paul Stevens gave his own hypo. “Would you give one answer to the Chief Justice on the facts he gave and a different one if the record showed that everybody got a proportional benefit out of the group policy?”

Young said no.

“So your answer doesn’t depend, then, on the facts that he included in that question?” Stevens asked.

This time Roberts jumped in: “He is not trying to help you,” Roberts said, drawing more laughter.

“I’m not sure he was either,” Stevens replied. Chuckles all around.

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