During oral arguments in the case Ricci v. DeStefano yesterday, Supreme Court Justice John Paul Stevens asked attorney Christopher Meade if the controversial test at the heart of the job discrimination case was replaced by another, and the results ended up the same, would the results have to be certified or would some other action be necessary.

After some clarifications, Meade answered: “Absolutely.”

Then Stevens and Chief Justice John G. Roberts, Jr. leaned forward and asked in unison: “Absolutely what?”

The crowd laughed, as did Stevens and Roberts. Then Meade replied: “Absolutely yes.”

Justice Antonin Scalia, apparently seeing the Who’s-On-First-type comedy opportunity, leaned forward and asked: “Absolutely, positively?” More laughter.

“Absolutely, positively,” Meade said.

“Absolutely yes – of what?” Roberts finally queried.

Meade finally got it. “Yes, they would have to certify the results,” he said. “Sorry I was unclear.”

Perhaps looking for some levity to balance the weighty legal issues before the Court this week – like whether race can be a factor in employment decisions, or when school officials can strip search students – all of the oral arguments at the Supreme Court this week were punctuated by lots of laughter.

We already know which justice got the biggest laugh, but it’s time to check in to see who is the funniest justice so far. With just one week of oral arguments left, Scalia is pulling away:

Here are the laugh standings:

Justice Antonin Scalia: 43 (Seven laughs this week alone, far more than any other justice)

Justice Stephen Breyer: 34

Chief Justice John Roberts: 27

Justice David Souter: 13

Justice John Paul Stevens: 12 (Passed Kennedy in the standings by getting three laughs)

Justice Anthony Kennedy: 11

Justice Ruth Bader Ginsburg: 5

Justice Samuel Alito: 3

Justice Clarence Thomas: 0 (No oral argument question or comment from him since Feb. 22, 2006).

Today’s session at the U.S. Supreme Court opened with Chief Justice John G. Roberts, Jr. welcoming Solicitor General Elena Kagan to the podium. Kagan, in turn, officially presented Attorney General Eric Holder to the Court.

“I welcome you as the chief law enforcement officer of the government, as an officer of this Court,” Roberts said to Holder before wishing him well in his post.

Holder’s simple reply: “Thank you, Mr. Chief Justice.”

As Holder walked to retake his seat near the front of the room, Roberts announced the day’s only decision. “I have the opinion in the case Nken v. Holder,” he said, shooting Holder a smile as member of the audience laughed.

We still don’t know which Supreme Court justice will have earned the most laughs in the courtroom this term, but today Justice Stephen Breyer likely earned the prize for causing the most raucous laughter ever in the hallowed halls of the Court.

At one point during oral arguments in Safford Unified School District v. Redding, Breyer questioned attorney Adam B. Wolf, who represented a student who sued her school district after she was strip searched for drugs in school. Breyer pointed out that it may not be unreasonable to think a student with contraband would try to hide it from school by stashing it in his or her underwear. After all, kids did that when he was a kid.

“In my experience when I was 8 or 10 or 12 years old, you know, we did take our clothes off once a day, we changed for gym, okay?,” Breyer said. “And in my experience, too, people did sometimes stick things in my underwear.”

The comment absolutely brought the house down, sending audience members, reporters, attorneys and even the justices into a fit of laughter. Breyer, clearly embarrassed at the slipup, tried to recover by saying: “Well, not my underwear!”

More laughter ensued. All he could do was put his blushing face into his hands and say, “Whatever. Whatever.”

After agreeing yesterday to take up cases involving civil immunity for prosecutors, speedy trial rights and the First Amendment, the Supreme Court today could release some opinions before hearing oral arguments in cases considering the constitutionality of a student strip search in Safford Unified School District v. Redding. Later the Court will consider whether city employees can sue to recover fees paid as a condition of employment under the False Claims Act in Eisenstein v. New York City.

More on any newsworthy orders from the Court here later.

Today Supreme Court Justice John Paul Stevens has once again made a bit of history – becoming only the second active high court justice to celebrate his 89^th birthday. (If you hear the echo of a booming baritone crooning “Happy Birthday” in the halls of the Court building today, that’s probably Justice Antonin Scalia feting his bench brother.)

Stevens, born April 20, 1920, is one year and 10 months away from overtaking Justice Oliver Wendell Holmes, Jr., as the oldest person ever to serve on the bench.

Still, Stevens has a way to go to be the longest-serving justice in history – right now he is in ninth place for that title.

It’s a stormy day in the nation’s capital as members of Congress and the justices of the Supreme Court head back to work after a break.

Today the Supreme Court kicks off the last round of oral arguments this term with Iraq v. Beaty, which considers whether a lawsuit against the Republic of Iraq brought by plaintiffs who were taken hostage during the Gulf War claiming intentional infliction of emotional distress is barred by the Foreign Sovereign Immunities Act.

Later, the Court will hear arguments in the closely-watched Horne v. Flores, where Pepperdine School of Law Dean Kenneth W. Starr – yes, that Ken Starr – will argue that federal does not require Arizona state lawmakers to fund new programs to teach English in the public schools to foreign-born students.

Department of Justice attorneys will have 10 minutes of oral arguments in each cases today, and expect to see much more of them: the Solicitor General’s office is either a party or amici in nine of the remaining 10 cases up for oral argument this term.

Across the street, members of Congress will begin crunching the details of the budget that was passed before their break. And President Barack Obama is home from a trip to Latin America and the Caribbean. Today he will hold his first White House Cabinet meeting.

Meanwhile,

Trimming the White House fat: Obama will tell members of his cabinet to cut their budgets to the tune of a collective $100 million in the next three months. (WaPo)

Delays, delays: For a third time, the federal government has delayed the implementation of a rule requiring all companies working on federal contracts to electronically check the legal working status of their employees through the Department of Homeland Security’s E-Verify system. (Lawyers USA)

Red light on greenhouse gases: In a policy sift, the Environmental Protection Agency has officially adopted the position that carbon dioxide and other greenhouse gas emissions pose a danger to the public’s health and welfare. (WaPo)

Praising Reno: Attorney General Eric Holder heaped praise on his former boss, former Attorney General Janet Reno, as she received the American Judicature Society’s “Justice Award.” (CNN Political Ticker)

Today, members of Congress and the justices of the U.S. Supreme Court enjoy their last day off before heading back to the office on Monday. President Barack Obama is wrapping up a visit to Mexico today before heading to Trinidad and Tobago for the Summit of the Americas.

Local food police falters: It’s not just federal agencies that are having trouble finding a way to keep the nation’s food supply safe – local and state food safety agencies are facing economic hurdles as well. (WaPo)

Prosecutors avoid prosecution: The botched trial of former Sen. Ted Stevens – and the resulting criminal probe – is the exception rather than the rule: prosecutors rarely get prosecuted after misconduct charges. (WSJ – Sub. Req’d)

Going digital: More federal courts have begun to offer digital audio recordings of courtroom proceedings as part of an expanded program intended to give more access to case information. (Lawyers USA)

Taxing the president: You weren’t the only one paying up to Uncle Sam this week. The first couple released their jointly-filed income tax information. They reported an adjusted gross income of $2656902 and paid $855323 in federal taxes. (Reuters)

Immigration issues: President Barack Obama says that when it comes to overhauling immigration, one of his goals is to eliminate the politics that doomed a previous attempt to revamp the system. (AP)

Attorney General Eric Holder has announced that the Department of Justice will give training to federal criminal prosecutors in an effort to boost their understanding of criminal discovery rules.

The move comes as Holder tries to move beyond the first major Justice Department ado of his tenure: the botched prosecution of former Sen. Ted Stevens, which led to his corruption conviction being thrown out.

“I am committed to ensuring that our prosecutors are provided sufficient training to understand fully their discovery obligations,” Attorney General Eric H. Holder Jr. said in the statement yesterday.

The training will focus on requirements prosecutors have to share evidence with defendants during discovery. Federal prosecutors are accused of withholding evidence in the Stevens case that could have been beneficial to the defense.

Last week U.S. District Judge Emmet Sullivan dismissed Stevens conviction and rapped prosecutors for their shoddy work. More here from Bloomberg News.

We know that Supreme Court Justice Clarence Thomas hasn’t spoken – on the record, anyway – during oral arguments in more than three years (though he frequently chats and laughs with his bench neighbor Justice Stephen Breyer, but that doesn’t count). He also speaks at public forums far less frequently than some if his colleagues.

So when he gives some insight into his personality or personal life, it’s an event indeed, as The New York Times‘ Adam Liptak wrote yesterday. At a recent talk Thomas gave to Washington area high school students, Thomas revealed, among other things, that he still marvels at the dishwasher.

“I have to admit,” he said, “that I’m one of those people that still thinks the dishwasher is a miracle. What a device! And I have to admit that because I think that way, I like to load it. I like to look in and see how the dishes were magically cleaned.”

He also clearly thinks that the Bill of Rights was not meant to extend as far as others may think.

“Today there is much focus on our rights,” he said. “Indeed, I think there is a proliferation of rights. …I am often surprised by the virtual nobility that seems to be accorded those with grievances. Shouldn’t there at least be equal time for our Bill of Obligations and our Bill of Responsibilities?”

And even though he rarely speaks from the bench – only when reading an opinion that he has authored or to joking privately with Breyer – make no mistake: the job of Supreme Court justices is a hard one.

“That’s one thing about this job,” he said. “You get a little tired. … There are some cases that will drive you to your knees. In those moments you ask for strength and wisdom to have the right answer and the courage to stand up for it.”

So how might he unwind after a grueling day on the job?

“I have on many occasions or a number of occasions when things were becoming particularly routine gone down to my basement to watch ‘Saving Private Ryan,’ ” he said. “I can’t tell you why that particular movie, except we have it and it’s about something important in our lives – World War II.”

[HT WSJ's Law Blog]

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