Laughtergate: The Day the Laughter Died at SCOTUS

This article first appeared in the December 16, 2013, issue of the National Law Journal’s Supreme Court Brief.

Laughter can be serious business at the U.S. Supreme Court, especially on the First Monday in October.

As the new term opened this fall, laughter disappeared from argument transcripts and a mild rumpus ensued on social media. Laughter did make a comeback, but not without some unanswered questions.

“When you read Supreme Court argument transcripts,” Justice Elena Kagan explained to a group of Harvard Law School students in September, “they actually tell you when there’s laughter in the Court” and which justice triggered it.

Jay Wexler, a former clerk to Justice Ruth Bader Ginsburg and now a professor at Boston University School of Law, publishes updated laughter counts for each justice at his @SCOTUShumor Twitter feed, along with commentary.

“Ten o’clock,” Wexler tweeted on Monday, October 7. “I guess #SCOTUS has started up. I can feel the laughter coursing through the countryside. If you’re very still, you can too.”

Kimberly Atkins, who also follows Supreme Court laughter, was in the courtroom. From her @DCDicta Twitter feed that morning, Atkins reported that Chief Justice John Roberts, as well as Justices Antonin Scalia, Stephen Breyer, and Samuel Alito had all gotten laughs.

Problem is, when the transcripts went online later that day, the laughter was missing.

Twitter noticed.

Both Wexler and Atkins tweeted about the A.W.O.L. laughter, and Atkins reiterated: “I heard laughs w my own ears. But if it isn’t in the transcript, is it like a tree falling in a forest?”

Other Twitter users, including myself, joined the discussion through comments and retweets.

Laughter at the Supreme Court has a following. To some, it is like box scores, fun to track. To others, it is a digestive aid that helps dull transcripts go down. It is even fodder for scholars, since laughter gives insight into justices’ personalities and Supreme Court dynamics.

Wexler wondered if “they’ve stopped making the notation. Several possible laugh lines in the transcript.”

Not only was the term new that day, but so was the Clerk of the Court, Scott Harris. His predecessor, William Suter, retired over the summer after more than two decades in the position. Had a new, laughter-free day dawned at the Supreme Court?

That afternoon, I contacted Alderson Reporting, which prepares the transcripts. A company representative indicated by telephone the next day that there was not a new policy; however, he did not explain the laughter void. (Responding to a later inquiry for this story, the Supreme Court’s Public Information Office said: “We don’t know why the omission occurred.”)

“Laughtergate deepens,” Atkins tweeted.

The good news is that laughtergate was mostly short-lived. The next day, laughter showed up in a new transcript. The First Monday transcripts remained somber, though. During the next week, I checked for updates several times. Still no laughter.

Another check in early December revealed that the laughter was back: one laugh each for four justices on the term’s first day, consistent with Atkins’ tweet.

When the laughter returned is fuzzy. Neither Alderson nor the Public Information Office provided an exact date. The office did say that Alderson initiated and made the changes as part of its review process.

So, where do the numbers stand now?

After the “laughtergate fix,” as Wexler called it, he tweeted updated numbers for the term, current through the December sitting. Scalia leads with twenty-two laughs; Breyer is not far behind with twenty. Ginsburg and the famously silent Justice Clarence Thomas are tied for last with zero.

“I check sometimes,” Kagan told the Harvard Law students, with a slight grin, speaking of the laughter tallies.

For more justices’ comments on the subject, see Wexler’s collection at his website.

Senator Lee Criticizes Chief Justice in New E-Book

This article first appeared in the July 17, 2013, issue of the National Law Journal’s Supreme Court Brief.

Since joining the Senate in 2011, Mike Lee has gained a reputation for criticizing President Barack Obama. In his new e-book, though, the junior Republican from Utah takes on a fellow conservative, Chief Justice John Roberts, and his 2012 opinion upholding the Affordable Care Act. I recently spoke with Senator Lee about the project.

Why John Roberts Was Wrong About Healthcare: A Conservative Critique of the Supreme Court’s Obamacare Ruling does not hide its political leanings. The title tells the story.

Lee, a former Howrey partner, writes that Roberts had “distinguished himself as a fair-minded jurist and a true constitutional scholar—a man seemingly committed to the rule of law and to core constitutional principles.” This “hard-earned distinction was turned on its head” after healthcare, according to Lee.

Roberts’ decision, in Lee’s view, smacks of an improper, split-the-baby compromise, a nod to both limited and big government. It put up a gate with the Commerce Clause, but opened it with the taxing power, invalidated, but then changed the Medicaid provisions to save them.

This was “contrary to what we expected from and thought we knew about Chief Justice Roberts,” the book states.

Lee acknowledges the possibility that Roberts made the decision because he ultimately believed the law required it. At the same time, Lee, who clerked for Justice Samuel Alito, strongly infers that statements from the media and political leaders swayed Roberts.

In the book’s foreword, Lee mentions his late father, former Solicitor General Rex Lee, and includes an interesting factoid: One of the last of Rex Lee’s 59 Supreme Court arguments, a 9-0 victory, was against a young Roberts.

“My dad held John Roberts in the highest regard,” Lee recalls, “and recognized how unusual it is to find in one person so much intellectual horsepower, professional talent, refined interpersonal skill, and genuine decency.”

I asked Lee how his father might have reacted to Roberts’ healthcare decision.

He would have been “disappointed and surprised,” for sure, but probably would not have written a book, Lee mused. Lee felt motivated to write because he saw a direct intrusion on Congress and, more personally, his job.

Although the title puts the focus on Roberts and there is a polemic flavor throughout, the book reads, overall, more like a primer on the healthcare case, from a conservative’s perspective.

As Lee told me, he wanted “to explain, in lay terms, what happened.” Consistent with a general audience, the book defines terms like “id.” and “Slip Opinion.”

Regarding the e-book format, Lee noted in our interview that political publishing is moving in that direction. He compared e-books to online singles in the music industry; he liked the idea of getting the book out quickly.

Also, Lee had in mind about 70 pages for the topic, which fits an e-book. That was as much as people would like to read about one case, he guessed, except for those who have already read the hefty healthcare decision itself.

Lee’s book ends with a lead balloon, a proposed bill attempting to nullify the healthcare decision’s tax ruling, which has little chance of passing in the Democrat-controlled Senate.

The book does not discuss the fact that prominent conservative judges who sit on federal appellate courts also voted to uphold healthcare. That being the case, why should Roberts be singled out and his motivations questioned?

Lee responded in the interview that Roberts’ approach was uniquely convoluted and more damaging, because it spoke for the Supreme Court.

The book currently tops Amazon’s best-seller lists for the judicial branch and for Kindle e-books about the legal system.

Justice Souter: Working in Reverse, by Choice

This article first appeared in the February 26, 2013, issue of the National Law Journal’s Supreme Court Brief.

Justice David Souter retired from the U.S. Supreme Court in 2009, but has not stopped being a judge.

In January, Souter heard fifteen arguments at the U.S. Court of Appeals for the First Circuit and eight more in February. As a retired associate justice, he has participated in approximately 170 First Circuit opinions, writing nearly fifty, far surpassing his previous experience as a court of appeals judge.

The First Circuit “is extremely grateful to Justice Souter for his invaluable contribution to the [court’s] work,” said Susan Goldberg, Deputy Circuit Executive, in response to an email inquiry for this article.

Even fully staffed, the First Circuit has only six active judges, the fewest of any circuit. One of those seats has been vacant since the end of 2011, when Judge Kermit Lipez took senior status. President Barack Obama nominated William Kayatta to the position in January 2012 and re-nominated him in January 2013. Kayatta was finally confirmed this month.

After serving on the bench for twelve years in New Hampshire, Souter’s home state, he sat on the First Circuit for just a few months, beginning in April 1990. He was nominated to the Supreme Court in July and confirmed in October. On that timetable, he heard argument, but authored no opinions.

Post-retirement, Souter’s numerous authored opinions for the First Circuit cover, among other topics, business, immigration, education, and employment.

In 2012, Souter was part of a unanimous decision in United States v. Kearney, written by Chief Judge Sandra Lynch. Kearney, which upheld restitution for a child pornography victim and identified a circuit split on the issue, is currently before the Supreme Court on a petition for certiorari. Another retired federal judge, Paul Cassell, filed a pending petition on behalf of victims in related litigation out of the Ninth Circuit.

One of the First Circuit appeals Souter heard recently involves a request to disqualify the district court judge in the case of accused mobster James “Whitey” Bulger. On the FBI’s Ten Most Wanted Fugitives list, Bulger eluded authorities for sixteen years before being captured in 2011.

At argument, Bulger’s attorney asserted that the federal government had given his client immunity, but declined to say when, despite the panel’s interest in the question. The district judge had been a federal prosecutor, so the date could be relevant to his alleged knowledge of the Bulger case.

Souter pressed the attorney twice, noting that his brief implied a particular time period. The attorney eventually confirmed Souter’s reading and offered, “You’re the first person to get that out of me.”

So, why would Souter retire from the nation’s highest court only to be so involved at another court?

As the other justices expressed in a farewell letter read from the bench by Chief Justice John Roberts on Souter’s last day: “We understand your desire to trade white marble for White Mountains, and return to your land ‘of easy wind and downy flake,’” references to a region in New Hampshire and the words of Robert Frost from his 1923 anthology, New Hampshire.

Put less poetically, the Associated Press quoted Souter as telling acquaintances that his was “the world’s best job in the world’s worst city.”

Solution: Keep judging at a high level, but from a different location.

First Circuit arguments are generally held in Massachusetts, an hour-and-a-half drive from the justice’s New Hampshire home. The court hears cases from those two states, as well as Rhode Island, Maine, and Puerto Rico.

In his resignation letter, Souter told President Obama: “I mean to continue to render substantial judicial service as an Associate Justice.”

By all accounts, he has succeeded.

Something from the Vaults for SG Nuts

In 2002, Brigham Young University held a conference, named for its law school's founding dean, former Solicitor General Rex Lee.  The conference, which was about the Office of the Solicitor General, is linked here (first item).

Presenters included former Solicitors General Charles Fried, Ken Starr, Drew Days, Walter Dellinger (acting), Seth Waxman, and Ted Olson, as well as prominent individuals who had worked in the SG's office; among them, Chief Justice John Roberts, Judges Frank Easterbrook and Daniel Friedman, former Judge Michael McConnell, Michael Dreeben, Maureen Mahoney, Donald Ayer, and the list goes on.  The conference records are not a quick skim (180+ pages), but are filled with historical and humorous information.  A must-read for SG nuts.

One Rex Lee anecdote quoted during the conference:

I remember seeing [Chief Justice Burger] one night at a social event . . . . And he told me, very seriously, "Some of your lawyers have been appearing in button-down shirts. That’s not appropriate.  They should not wear button-down collars with their black frock coats."  I told him I’d get someone on it right away.  But I didn’t know of anyone other than me who had ever appeared in a button-down shirt!  I got the message.

Video: The Roberts Court in the Obama Era

Adam Liptak, Supreme Court reporter for the New York Times, recently gave a speech at Vanderbilt University in connection with Constitution Day.  The address was called "The Roberts Court in the Obama Era" (YouTube video linked here).

Quote: Why the Handshake Never Caught On

[There is a] tradition in the Court of Appeals for the Fourth Circuit, where at the end of oral argument the judges come down from the bench and shake hands with the lawyers.  It is a very endearing custom emblematic of the grace and hospitality of the region encompassed by the Fourth Circuit.

Things are different in the District of Columbia Circuit. . . . There is a famous episode from the early nineteenth century involving Judge Buckner Thruston, who was in the habit of finding the lawyers appearing before him deficient in many respects, and in the habit of giving voice to that view.  On one occasion, a lawyer responded in kind, letting Judge Thruston know that he, the lawyer, found the Judge equally deficient.  The Evening Star explained what happened next: "Judge Thruston's reaction was to hustle down from the bench and berate his critic as 'a scoundrel and poltroon,' whom he challenged to step 'outside and fight.'"  Perhaps those sorts of beginnings explain why the tradition never really caught hold in D.C. as it has in Richmond.

John G. Roberts, Jr., What Makes the D.C. Circuit Different?  A Historical View, 92 Va. L. Rev. 375, 375-76 (2006) (footnote omitted).

DC Circuit: No Certificate of Innocence for Deceased Man

The DC Circuit "is so small [geographically] that it does not have a federal prison within its boundaries, so prisoner petitions—which make up a notable portion of the docket nationwide on other courts of appeals—are a less significant part of its work."  John G. Roberts, Jr., What Makes the D.C. Circuit Different?  A Historical View, 92 Va. L. Rev. 375, 376 (2006).

This week, the DC Circuit decided a case that can be traced to one (and in some senses, three) of these relatively few prisoner petitions.

Not Over Until the Boy in Seersucker Shoots Webs

Various outlets are reporting that Elena Kagan is the next Supreme Court nominee. Although the sources are reputable, I will not be sure until Kagan is at the podium with President Obama. Various outlets also reported that Edith Brown Clement was going to replace Justice O'Connor and we all remember that John Roberts showed up at the podium--with Jack in his seersucker suit, on the move. My favorite get from the 2006 Jan Crawford interview with Chief Justice Roberts was that Jack was not dancing, he was being Spiderman "shooting the webs off."

Update (10:21 AM): Webs shot. Congratulations Solicitor General Kagan.