SCOTUS Historical Society Event with Justice Alito

April 9, 2014 / Michelle Olsen

The Supreme Court Historical Society held a panel discussion about judicial biographies, hosted by Justice Samuel Alito at the Supreme Court on April 9.

The tweets below are observations from the event, including some interesting comments by Justice Alito during the program, held in the courtroom, and at the reception after.

The Historical Society supports research, programs, and publications about the Court. Justices are often present at the events. Information about membership is here.

The Supreme Court gift shop, which sells autographed copies of justices’ books and many other items, supports the Society’s work. 

Justice Alito recommends http://t.co/NDPCml88HB as a resource for learning about #SCOTUS.
— Michelle Olsen (@AppellateDaily) April 10, 2014

Justice Alito: Both the Historical Society and the Fellows program were the "brainchildren" of CJ Burger. #SCOTUS
— Michelle Olsen (@AppellateDaily) April 10, 2014

Alito & his wife went to lecture by a judge some yrs ago that was very boring. Alito guessed boring bc judges limited in what they can say.
— Michelle Olsen (@AppellateDaily) April 10, 2014

...His wife said, "No, it's because judges are very boring people." Alito: "She's never wrong."
— Michelle Olsen (@AppellateDaily) April 10, 2014

#SCOTUS-Justice Alito attended the reception after and spoke with many people.
— Michelle Olsen (@AppellateDaily) April 10, 2014

I asked Justice Alito if he would like to do a book. It was a decided no. #SCOTUS
— Michelle Olsen (@AppellateDaily) April 10, 2014

Alito was interested to read, re Heller, that he's a gun "enthusiast." Gun use almost exclusively when in Army, he told small group. #SCOTUS
— Michelle Olsen (@AppellateDaily) April 10, 2014

Event itself re judicial biographies. Panelists have written about #SCOTUS justices. Interesting pros and cons of deceased or live subject.
— Michelle Olsen (@AppellateDaily) April 10, 2014

Pro of live subject is the original source; pro of deceased subject is that others more willing to talk about person. #SCOTUS
— Michelle Olsen (@AppellateDaily) April 10, 2014

Prof. Stephen Wermiel @AUWCL talked about being chosen by Justice Brennan to write his bio. Met in secret at Court, pored over papers.
— Michelle Olsen (@AppellateDaily) April 10, 2014

Panelist Clare Cushman gave high marks to co-panelist book: Judge John Ferren on Justice Wiley Rutledge: http://t.co/67BmcLltNR #SCOTUS
— Michelle Olsen (@AppellateDaily) April 10, 2014

...Among the impressive and long list of sources noted at end of the Rutledge book is Justice John Paul Stevens, a Rutledge clerk. #SCOTUS
— Michelle Olsen (@AppellateDaily) April 10, 2014

Circuit Split Watch: Are 'Boobies' Bracelets the New Black Armbands?

This article first appeared in the January 22, 2014, issue of the National Law Journal’s Supreme Court Brief.

Federal courts are split over whether schools can ban bracelets that say “i ♥ boobies! (KEEP A BREAST).” The bracelets are part of a breast cancer awareness movement targeted at youth, but some middle and high school administrators are crying foul. A petition for certiorari on this free speech issue is pending at the U.S. Supreme Court.

In its 1969 landmark First Amendment decision, Tinker v. Des Moines Independent Community School District, the Supreme Court held that school officials could not bar young people from wearing black armbands to school as a peaceful war protest. In 1986, though, in Bethel School District No. 403 v. Fraser, the high court said that officials could punish student speech that used vivid sexual imagery in a school assembly.

The “boobies” bracelet is a hybrid between the Tinker armband and the Fraser speech: a clothing accessory with a message, which some schools view as double entendre.

So far, courts have not found that the bracelets substantially disrupt the school environment, yet they have reached different results on the bans.

Schools won in Indiana and Wisconsin federal district courts; those decisions were not appealed. Students won at the U.S. Court of Appeals for the Third Circuit, sitting en banc in a Pennsylvania case.

The nine-member Third Circuit majority determined that the “bracelets are not plainly lewd,” looking to Fraser, and comment on “an undeniably important social issue,” applying Justice Samuel Alito Jr.’s concurrence in another student speech case, the Supreme Court’s 2007 Morse v. Frederick.

Five judges on the Third Circuit dissented.

What about “I ♥ vaginas” or “I ♥ testicles,” they asked, if couched as cancer awareness slogans? “[S]chool districts would be powerless to address” them.

The dissent also criticized the majority for treating Alito’s Morse concurrence as controlling and for deepening a circuit split on the weight of Alito’s opinion (separate from the split about the bracelets).

Morse is better known as the “BONG HiTS 4 JESUS” case, quoting a banner that students unfurled at a school event. A five-justice majority said that the banner was not protected speech in a school setting, since it promoted illegal drug use.

The Third Circuit dissent reasoned that since Alito joined that majority opinion, his concurrence is dicta. For plurality rulings, the narrowest rationale controls, but Morse was not a plurality. Justice Anthony Kennedy also signed on to Alito’s concurrence.

The Third Circuit majority responded that Alito and Kennedy cast the deciding votes, but on the condition, spelled out in the concurrence, that Morse not be read to restrict speech that “comment[s] on any political or social issue.” The social commentary language is binding and weighs in favor of allowing breast cancer awareness bracelets, the Third Circuit majority concluded.

A petition for certiorari is pending at the Supreme Court on the Third Circuit decision. Absent extensions, the response is due February 5.

The justices may opt to wait until more federal appellate courts have vetted the bracelet bans or otherwise choose not to disturb the rulings below.

In 2012, the justices declined to review two en banc decisions—also from the Third Circuit—about another free speech battleground for students and schools: online posts. The circuit had sided with students who created fake and vulgar MySpace profiles about their principals, while off school property.

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.