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The Funniest Justice, week 5: Humorous error

During oral arguments Wednesday in Henderson v. U.S., Justice Department attorney Jeffrey B. Wall cited Supreme Court precedent to make his case that plain error criminal appeals must be based on the law at the time of sentencing.

Johnson [v. U.S.] did nothing, either as a matter of its holding or its rationale, to say what the rule requires more generally in cases like this one, where a contemporaneous objection could have been ‘helpful to the district court,’” Wall argued.

Justice Antonin G. Scalia wasn’t persuaded.

“I joined Johnson, and maybe I have to repudiate it if it leads to that conclusion,” Scalia said.

“Justice Scalia, you did not join the relevant portion of Johnson,” Wall said.

“Oh, I didn’t?” Scalia said. “Thank God! It didn’t sound like me.”

That comment earned Scalia one of his four laughs of the week, making him this week’s funniest justice, and solidifying his lead on the term-long tally of courtroom chuckles. Chief Justice John G. Roberts Jr. also made a funny this week.

Here is the tally for the term so far:

Justice Antonin G. Scalia: 10

Justice Stephen G. Breyer: 5

Chief Justice John G. Roberts, Jr.: 4

Justice Anthony M. Kennedy: 3

Justice Sonia M. Sotomayor: 3

Justice Elena Kagan: 1

Justice Clarence Thomas: 0

Justice Ruth Bader Ginsburg: 0

Justice Samuel A. Alito, Jr.: 0

‘Disingenuous’ assertion miffs chief justice (access required)

A lesson for the lawyers over at the U.S. solicitor general’s office: it’s best to be honest and forthcoming about the reason for a change in the government’s position in a Supreme Court case.

A Justice Department attorney learned that lesson the hard way Tuesday when Chief Justice John G. Roberts Jr. upbraided him during oral arguments for an assertion made in the government’s amicus brief. Read More »

Supreme fashion plates

Justice Ruth Bader Ginsburg was recently honored by Glamour magazine, and on Monday, Ginsburg brought some glamour to the bench.

Those who attend Supreme Court oral arguments regularly already know that Ginsburg has a fondness for accessorizing – she has an array of white lace jabots that she likes to switch up from day to day to add some flair to her black robe. But on Monday, Ginsburg made a fashion statement with a new piece of bling around her neck.

The folks at the Washington Post’s Reliable Source column got the scoop on Ginsburg’s new bauble. It was a Banana Republic lace bib necklace that Ginsburg received in the gift bag at Glamour’s “Women of the Year” awards.

Perhaps Ginsburg was emboldened to make bolder fashion statements on the bench by her colleague Justice Sonia Sotomayor, who can usually be seen donning shiny dangling earrings and cuff bracelets while grilling attorneys in the courtroom. Lately Sotomayor also has been wearing a more tailored, slimmer fitting black robe during arguments instead of the traditional pleated tent-like style.

Busy week for Supremes

What constitutes a “supervisor” when it comes to workplace harassment claims?

That is one of the issues the justices of the U.S. Supreme Court will take up today to kick off a busy week. In addition to hearing oral arguments in a number of cases, by week’s end the Court could decide whether to take up cases involving challenges to state and federal gay marriage laws: the Defense of Marriage Act and California’s Proposition 8.

Stay up to date on all Supreme Court-related news by visiting our Supreme Court Report.

Moot court judge and swordfighter Souter

Retired Justice David Souter may have retired from the bench, but he still judges moot court competitions.

The retired Supreme Court justice visited his alma mater Harvard Law School to judge the final round of the Ames Moot Court competition, according to a press release from the school. The release touts that  the competition “stands out for its rigor” in part because of its ability to draw Supremes. (As a side note, this writer also argued before Souter at a moot court competition years ago, across the Charles River from Harvard at Boston University School of Law. So we were fancy too.)

The press release does contain an interesting piece of trivia: as a law student Souter, described as a “wild card” ended up in student health services for injuries he sustained in a casual swordfight.


Scalia’s least favorite things

We can now add to the growing list of things that annoy Justice Antonin G. Scalia.

We already knew Scalia’s not too keen on renowned federal judges criticizing the justice’s work.  He hates it when lawyers arguing before the Supreme Court cite statutes without including the text of the law in their briefs. Accusing the justices of having partisan motives is sure to ruffle Scalia’s feathers as well.

Now, we know that grammatically-challenged flight attendants peeve the Court’s most senior associate justice as well. Speaking this weekend at the Federalist Society, Scalia complained of “the illiterates who communicate with the public” on airlines, according to the WSJ’s Law Blog. Scalia referred to a recent flight where the attendant announced that it was “required that your luggage is under the seat in front of you.” The “is” should have been “be,” according to the justice.

Alito speaks of federalism, GPS devices and learning nothing in Con Law

Justice Samuel A. Alito Jr. was the featured speaker at a the Federalist Society’s 30th Anniversary Gala Dinner last night, and according to event attendee and FantasySCOTUS.net founder Josh Blackman, the justice touched on everything from his days as a Yale Law student to his thoughts on the health care challenge.

According to Blackman, Alito said his experience as a student of Constitutional Law professor and counterculturalist Charles Reich was less than stellar, and that he “learned nothing.” “Alito joked that his opponents will seize this story as proof of why he doesn’t understand constitutional law,” Blackman observed.

Touching on last term’s Supreme Court cases, Alito reinforced the notion that the Court isn’t too keen on the idea of GPS devices being placed on everyone’s car, and said that Solicitor General Donald B. Verrilli Jr., in his argument in the health care case, “attempted to land a one-two punch that would have sent federalism to the mat.”

More of Josh’s lengthy observations here. As always, get more Supreme Court news from Lawyers USA’s Supreme Court Report.

Roberts one of Esquire’s Americans of the year

Glamour isn’t the only magazine handing out year-end accolades to Supreme Court justices. In its December issue, Esquire names Chief Justice John G. Roberts Jr. one of its Americans of the year.

Noting that Roberts’ young age ensures he’ll lead the Court for decades, the chief justice was chosen based mainly on his opinion in the health care challenge.  That opinion, the magazine observed, simultaneously gave full force to the limits of the Commerce Clause while upholding the president’s chief legislative achievement and staving off charges of playing politics.

Roberts “managed simultaneously to save the court’s credibility while also staying faithful to the corporate power to which he has shown deference his entire career,” the magazine notes. “No one saw this coming or had reason to believe that John Roberts was even capable of such nimbleness.”

Roberts joins a list of notables including tennis champion Serena Williams, shooting victim Trayvon Martin and rocker Bruce Sprinsteen.