Showing posts with label Antonin Scalia. Show all posts
Showing posts with label Antonin Scalia. Show all posts

Monday, January 6, 2014

Via Twitter: Why Sotomayor Likely to Refer Utah's Stay Request to Full Supreme Court

UPDATED-See end of post










The importance of the same-sex marriage issue also makes it likely that Justice Sotomayor will refer Utah's stay request to the full Court.

Update from Adam Charnes, who clerked for Justice Kennedy:


This tradition is one more reason Justice Sotomayor will likely refer the request to the full Court. Why add paperwork when the request will probably end up with the full Court anyway?

Second Update: Justice Sotomayor referred the matter to the full Court, which granted the stay (here).

Third Update:


Tuesday, December 17, 2013

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.

Monday, November 11, 2013

Justice Breyer and Religion

The Huffington Post ran an article on Friday asking: Did Justice Breyer admit to being an atheist?

Short answer, no.

The basis for the article's question comes from last week's Town of Greece oral argument (pp. 18-19).

Justice Scalia asked counsel: "[W]hat is the equivalent of prayer for somebody who is not religious?"

After a brief colloquy between Scalia and counsel, Breyer said: "Perhaps he's asking me that question and I can answer it later." (Counsel's time was about to expire.)

Some people are reading that as Breyer admitting he is an atheist.

Again, no.

A question for Breyer (if that's what it was) does not necessarily mean a question about Breyer or his beliefs. As, in fairness, the HuffPost article points out, Breyer could have been talking about his ability to at least restate other people's "not religious" viewpoints. In any case, "not religious" does not always equal atheist.

Breyer, who is Jewish, is a regular at the Red Mass, a Catholic service held before the opening of each new Supreme Court term. He has attended the last seven, including one just a few weeks ago.

His daughter Chloe, an Episcopal priest, writes in her book, The Close: A Young Woman's First Year at Seminary (2000), that "Church-based activity was more the exception than the rule as I was growing up" (p. 156). But the exceptions are telling. Breyer attended, hosted, and encouraged participation in religious events.
I grew up in an interfaith, academic household, the daughter of an American Jewish father and an English Anglican mother, and I was baptized into the Church of England as a young child. During the few years my family and I attended an Episcopal church in Cambridge, each of us had different reasons for going. My mother liked singing the traditional Anglican hymns she had grown up hearing in England. My father respected the old Irish American rector and thought my brother, sister, and I should have some exposure to organized religioneven if it wasn't his own Jewish faith. We came to know more about our Jewish heritage when my father began holding annual Passover Seders and attending Rosh Hashanah and Yom Kippur services (Introduction, xiii).
One end note: Justices, like all judicial and executive officers, need to take an oath to support the Constitution; however, "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." Art. VI, para. 3.

Since the Constitution says justices' religion shouldn't be an issue, why bring it up? (But, of course, we do.)

Monday, May 17, 2010

Quote: The Key Swing Vote . . . Justice Scalia?

[T]he one area of law where I do think that the sort of 5-4, "Where is Justice Kennedy going to come out?" dynamic does not hold true increasingly is the criminal docket of the Court. . . . [I]n some ways on the criminal docket, the key swing vote is actually Justice Scalia.

There are a number of cases in the Apprendi line of cases, other Sixth Amendment cases, also cases involving the Confrontation Clause, where Justice Scalia has [ruled in favor of the criminal defendant].

Paul D. Clement
Former Solicitor General and Partner, King & Spalding
Sixth Circuit Judicial Conference
May 5, 2010

Saturday, May 15, 2010

There Are Always C-SPAN2 and C-SPAN3

Joe Wong likes that if C-SPAN does not help him fall asleep, there are always C-SPAN2 and C-SPAN3.

Tonight at 7pm (ET), C-SPAN will televise a panel discussion on the current Supreme Court term, moderated by Elena Kagan, before her nomination, and including former Solicitor General Paul Clement. This is part of C-SPAN's America and the Courts series, televised every Saturday night at 7pm. This link has recent programs available, including presentations by Supreme Court justices, among them a joint discussion with Justices Scalia and Breyer about their views of the Constitution.  Recent programs also include a speech by Fourth Circuit Judge Roger Gregory, as well as a Moot Court on health care and immigration status.