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