The Funniest Justice, week 12: Fair and funny

April 2, 2009

breyer“I didn’t want to complicate it,” Justice Stephen Breyer said to attorney Carter Phillips Tuesday during oral arguments in Gross v. FBL Financial Services. “But that may work in your favor to complicate it, and I want to be fair.”

scaliafunnyThat is one of the two comments made by Breyer that drew laughs from the audience at the Supreme Court this week. But in the funniest justice contest, it is Justice Antonin Scalia who extended his lead a little by garnering three laughs.

Here are the laugh standings as of yesterday:

Justice Antonin Scalia: 39

Justice Stephen Breyer: 32

Chief Justice John Roberts: 26

Justice David Souter: 11

Justice Anthony Kennedy: 10

Justice John Paul Stevens: 10

Justice Ruth Bader Ginsburg: 5

Justice Samuel Alito: 2

Justice Clarence Thomas: 0 (No oral argument questions or comments since Feb. 22, 2006).


You say O’Connor, I say Ginsburg

March 31, 2009

Even the most seasoned Supreme Court litigator can misspeak when standing in front of the nine justices at oral argument.

carterphillipsToday at the Supreme Court, Carter G. Phillips, who has argued before the high court more than five dozen times during his tenure both at the Justice Department and at Sidley Austin, had a little trouble keeping the justices straight.

While discussing a concurrence written by Justice Sandra Day O’Connor in an employment discrimination case, Phillips said: “Justice Ginsburg provides the formulation that the lower courts can use to try to provide some kind of a jury instruction.”

Justice Ruth Bader Ginsburg, hearing the mistake, corrected Phillips.

“Justice O’Connor,” Ginsburg said.

“Did I say Ginsburg?” Phillips asked.

“Yes,” Ginsburg replied, as member of the audience began to laugh.

“I’m going to hear about this one,” Phillips said. “I apologize.”

A little later, Phillips slipped again. After a lengthy exchange with Justice Stephen Breyer, Phillips addressed him as “Justice Ginsburg.”

The next question was posed by Justice Ginsburg. In that instance, Phillips addressed her correctly.

The transcript for that case, Gross v. FBL Financial Services, can be found here.

Justice debate death penalty in cert denial

March 10, 2009

The denial of a certiorari petition gave several justice of the Supreme Court an opportunity to argue about the death penalty.

The disagreement – carried out through a statement by Justice John Paul Stevens, a dissent by Justice Stephen Breyer and a concurrence by Justice Clarence Thomas – came after the Court declined to take up the case of Thompson v. McNeil, which presented the issue of whether being on death row for 32 years constitutes unconstitutionally cruel and unusual punishment.

jpstevensStevens, who has recently been vocal in his opposition to the death penalty, stopped short of dissenting in the cert denial. But in his accompanying opinion, he pointed out that the case – like many others – evidences the need for reconsideration of the way capital punishment is administered.

“As he awaits execution, petitioner has endured especially severe conditions of confinement, spending up to 23 hours per day in isolation in a 6- by 9-foot cell,” Stevens wrote of the defendant, William Lee Thompson. “Two death warrants have been signed against him and stayed only shortly before he was scheduled to be put to death. The dehumanizing effects of such treatment are undeniable.”

Stevens pointed out that such a case is not rare. “Today, condemned inmates await execution for an average of nearly 13 years,” Stevens wrote. “To my mind, this figure underscores the fundamental inhumanity and unworkability of the death penalty as it is administered in the United States.”

Stevens went on the say that the existence of such “inescapable” delays “reinforces my opinion that contemporary decisions to retain the death penalty as a part of our law are the product of habit and inattention rather than an acceptable deliberative process.”

thomas2But Thomas took issue with that characterization.

“[B]ecause petitioner chose to challenge his death sentence, [Stevens and Breyer] suggest that the subsequent delay caused by petitioner’s 32 years of litigation creates an Eighth Amendment problem,” Thomas wrote.

Thomas added: “Justice Stevens criticizes the ‘dehumanizing effects’ of the manner in which petitioner has been confined, but he never pauses to consider whether there is a legitimate penological reason for keeping certain inmates in restrictive confinement.”

Finally, Thomas notes that Stevens “refuses to take into consideration the gruesome nature of the crimes” for which Thompson was convicted, and Thomas then recounts the grizzly facts in his opinion.

breyer1Breyer addresses Thomas’ point by noting “it is the punishment, not the gruesome nature of the crime, which is at issue.”

As for Thomas’ point that the defendant is partially to blame for the delay in his time on death row, Breyer writes: “I do not believe that petitioner’s decision to exercise his right to seek appellate review of his death sentence automatically waives a claim that the Eighth Amendment proscribes a delay of more than 30 years.”

Breyer went on to write that “the delay here resulted in significant part from constitutionally defective death penalty procedures for which petitioner was not responsible. In particular, the delay was partly caused by the sentencing judge’s failure to allow the presentation and jury consideration of non statutory mitigating circumstances, an approach which we have unanimously held constitutionally forbidden.”

The funniest justice, week 8: When the whole world laughed

January 22, 2009

cjrobertsThere was only one day of oral arguments at the Supreme Court this week. And the three cases heard yesterday did not provide much opportunity for laughter in the courtroom (that is, aside from the laughter in the press gallery as reporters rehashed the presidential oath flub heard around the world).

Chief Justice John G. Roberts, Jr. did manage to make the crowd laugh once inside the courtroom. While some court watchers were expecting him to make some sort of self-effacing comment regarding the trouble he had with President Barack Obama’s oath Tuesday – Roberts does, after all, have a pretty good sense of humor – he made no reference to it at all. (Legal Times’ Tony Mauro thinks he may have heard something in the way Roberts pronounced the word “clerk.” DC Dicta didn’t catch that, but we always defer to Tony’s ear, being the astute reporter that he is.)

Justice Stephen Breyer was the only other justice to get a laugh, which creates a real three-way contest in the quest to be the Funniest Justice of the term. Usually Justice Antonin Scalia runs away with it by now, but Nino better think of some funny quips quickly if he wants to stay in top.

Here are the laugh standings after eight weeks of oral arguments:

Justice Antonin Scalia: 29

Justice Stephen Breyer: 22

Chief Justice John Roberts: 20 (Not counting the laughs he may have received Tuesday)

Justice David Souter: 9

Justice Anthony Kennedy: 9

Justice John Paul Stevens: 6

Justice Samuel Alito: 2

Justice Ruth Bader Ginsburg: 1

Justice Clarence Thomas: 0 (Thomas hasn’t made a remark during oral arguments since Feb. 22, 2006).

The Funniest Justice, week 6: Scalia’s scared

December 11, 2008

scaliafunnyWednesday’s Supreme Court oral arguments over whether pregnancy leave taken before the enactment of the Pregnancy Discrimination Act of 1978 must be counted towards pension credit, attorney carter Phillips argued that ruling otherwise would be like denying blacks seniority credit for work they did before Title VII became law.

“You mean there are a lot more suits coming behind this one for any kind of discrimination that preceded Title VII?” Justice Antonin Scalia asked, seeming concerned. “When was Title VII enacted?”

“1964,” Phillips answered.

“There may be still some of those people around?” Scalia asked.

“There are.” Phillips said.

“You’re scaring me,” Scalia said, drawing a laugh from the crowd.

If Scalia isn’t truly scared of claims of decades-old Title VII misdeeds, perhaps he should be afraid of losing his long-held status as the Funniest Justice.

For the second week in a row, that distinction has gone to Justice Stephen Breyer, who this week garnered four laughs to Scalia’s two. Breyer has now passed the often comical Chief Justice John G. Roberts, Jr. to take the #2 spot on out funny list, and is only a scant eight laughs away from dethroning Scalia as the funniest justice so far this term.

Here are the laugh standings so for this term, based on Court transcripts:

Justice Antonin Scalia: 27

Justice Stephen Breyer: 19

Chief Justice John Roberts: 18

Justice David Souter: 9

Justice Anthony Kennedy: 9

Justice John Paul Stevens: 6

Justice Samuel Alito: 2

Justice Ruth Bader Ginsburg: 1

Justice Clarence Thomas: 0 (Thomas hasn’t made a remark during oral arguments since Feb. 22, 2006).

Meanwhile, you can find more on the PDA case, AT&T Corp. v. Hulteen, here from Lawyers USA

More on other oral arguments from this week:

Arizona v. Johnson – more here from Lawyers USA.

Ashcroft v. Iqbal – more here from The Los Angeles Times.

Cone v. Bell – more here from the Associated Press.

Transcripts from arguments in Pacific Bell Telephone v. LinkLine Communications and Peake v. Sanders can be found on the Supreme Court’s website.

Cert denied, but Stevens and Breyer still speak out on capital victim videos

November 11, 2008

Yesterday the U.S. Supreme Court declined to take up cases considering the admissibility of video victim impact statements during the penalty stage of capital murder trials — and three justices were not happy about it.

The videos – which can be seen here on the Court’s website – featured images of the murder victims, voiceovers from loved ones, music and other images (like galloping horses in the case of a victim who was an avid horseback rider). The defendants challenged the admission of the videos, and ultimately petitioned the Court to decide whether they were unduly prejudicial.

It takes four justices to grant certiorari in a case, and the Court apparently fell one justice short.  Justices David Souter, John Paul Stevens and Stephen Breyer wanted to take up the case.

stevens3Stevens, as he has several times this term, issued a statement on the cert denial, expressing in no uncertain terms his concerns about such statements.

“Victim impact evidence is powerful in any form,” Stevens wrote. “But in each of these cases the evidence was especially prejudicial. Although the video shown to each jury was emotionally evocative, it was not probative of the culpability or character of the offender or the circumstances of the offense. Nor what the evidence particularly probative of the impact of the crimes on the victims’ family members.”

Stevens found the form of the statements particularly troubling. “As these cases demonstrate, when victim impact evidence is enhanced with music, photographs, or video footage, the risk of unfair prejudice quickly becomes overwhelming.”


Breyer, in a separate statement, echoed Stevens’ concerns. “[T]he film’s emotional and artistic attributes themselves create the legal problem,” Breyer wrote. “They render the film’s purely emotional impact strong, perhaps unusually so.”

Breyer added: “The due process problem of disproportionately powerful emotion is a serious one” in the videos.

Scalia: Can’t ban use of America’s ‘chosen’ firearm

June 26, 2008

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

Justice Antonin Scalia broke down the Second Amendment, clause by clause, in coming to the conclusion that the individual right it conveyed trumps the interest in cities like the District of Columbia in banning handguns outright in D.C. v. Heller.

In the end, Scalia reasoned, “the inherent right of self-defense has been central to the Second Amendment right.”

“The handgun ban amounts to a prohibition of an entire class of ‘arms’ that is overwhelmingly chosen by American society for that lawful purpose,” Scalia wrote. “The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute. Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home the most preferred firearm in the nation to keep and use for protection of one’s home and family, would fail constitutional muster.”

“We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution,” Scalia later noted. “The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home.”

Justice John Paul Stevens filed a dissent joined by the rest of the Court’s so-called liberal bloc: Justices Ruth Bader Ginsburg, David Souter and Stephen Breyer. In his opinion, Stevens said it is uncontroverted that the right to bear arms is an individual right protected by the Constitution.

“But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right,” Stevens wrote. “Guns are used to hunt, for self-defense, to commit crimes, for sporting activities, and to perform military duties. The Second Amendment plainly does not protect the right to use a gun to rob a bank; it is equally clear that it does encompass the right to use weapons for certain military purposes.”

Looking at the text of the Second Amendment and legal history, Stevens said the majority’s conclusion is unfounded.

“Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms,” Stevens wrote. “Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.”

Breyer also filed a dissent, joined by Stevens, Ginsburg and Souter, echoing Stevens’ reason for dissenting and adding another.

“The second independent reason is that the protection the Amendment provides is not absolute,” Breyer wrote. “The Amendment permits government to regulate the interests that it serves. Thus, irrespective of what those interests are-whether they do or do not include an independent interest, in self-defense-the majority’s view cannot be correct unless it can show that the District’s regulation is unreasonable or inappropriate in Second Amendment terms. This the majority cannot do.”