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The Funniest Justice, week 10: Extra time for laughter

When Paul Clement, the attorney for the respondent in the case American Express Co. v. Italian Colors Restaurant, wrapped up his oral argument Wednesday, Chief Justice John G. Roberts Jr. told him: “We’ll afford you some rebuttal time.”

Puzzled, the Clement looked at the chief justice and slowly took his seat. Roberts, realizing his mistake – only the petitioner’s attorney gets rebuttal time – corrected himself: “Oh, no we won’t!”

As the justices and onlookers laughed, Justice Antonin G. Scalia jumped in.

“You should have said, ‘I accept,’ very quickly,” Scalia said to Clement, drawing more laughter.

Scalia found himself in the familiar spot of being the week’s Funniest Justice, making the crowd laugh seven times during arguments this week. But Justice Stephen G. Breyer is still making a contest of it, drawing six laughs to stay within striking distance of his colleague. Here are the current standings:

Justice Antonin G. Scalia: 34

Justice Stephen G. Breyer: 30

Chief Justice John G. Roberts Jr.: 9

Justice Anthony M. Kennedy: 6

Justice Sonia M. Sotomayor: 5

Justice Elena Kagan: 5

Justice Samuel A. Alito, Jr.: 2

Justice Clarence Thomas: 1

Justice Ruth Bader Ginsburg: 0


Alito and Sotomayor engage in a little cross-Hudson humor

The comedy duo of Scalia and Breyer may have some competition on the bench when it comes to tag-team humor. Yesterday during oral arguments in Peugh v. U.S., it was the Alito and Sotomayor Show.

“I’m told that [in] the Eastern District of New York now, only 30 percent of the defendants receive within- guidelines sentences,” Justice Samuel A. Alito Jr. said, making the point about the steady increase in sentences outside of federal guidelines since the rules became advisory.

“You’re assuming that’s changed over time,” said Justice Sonia M. Sotomayor, drawing laughs (though not noted in the transcript) from folks in the room who were aware that the New York native was a prosecutor and 2nd Circuit appellate judge before she reached the high court.

Alito, a native New Jerseyan and former 3rd Circuit judge, gently jabbed at his colleague.

“Well, when I was on the court of appeals we thought it was our responsibility to ensure that the district courts were complying with the Sentencing Reform Act,” Alito said. “That might not have been true across the river, but…” More laughs.

Without missing a beat, Sotomayor shot back: “It wasn’t.” Laughter ensued on the bench and in the crowd.

Sotomayor scolds federal prosecutor for racially-charged questioning

If the justices of the U.S. Supreme Court deny cert in a particular case, it doesn’t mean they liked the behavior of the winning party in the proceeding below.

Justice Sonia M. Sotomayor made that clear in an opinion accompanying a cert denial Monday in the case Calhoun v. U.S. That case involves a remark made by a federal prosecutor while questioning the defendant: “You’ve got African-Americans, you’ve got Hispanics, you’ve got a bag full of money. Does that tell you—a light bulb doesn’t go off in your head and say, This is a drug deal?”

While not disagreeing with the Court’s decision not to grant the defendant certiorari on his claim that the racially charged question violated his constitutional rights, Sotomayor made clear what she thought of the prosecutor’s questioning, which she said “tapped a deep and sorry vein of racial prejudice that has run through the history of criminal justice in our Nation.”

The question “was pernicious in its attempt to substitute racial stereotype for evidence, and racial prejudice for reason,” Sotomayor said. “It is deeply disappointing to see a representative of the United States resort to this base tactic more than a decade into the 21st century.”


Gov’t asks Court to find DOMA unconstitutional – and invokes Prop 8

The Obama administration filed a brief with the U.S. Supreme Court Friday which formally asked the justices to declare the Defense of Marriage Act, which prohibits same-sex married couples from being recognized by the federal government, unconstitutional. But in its argument, the government cites California’s voter-approved same-sex marriage ban as evidence of the problem of bias against same-sex couples.

In doing so, the brief raises speculation that the government may jump directly into the legal challenge of California’s Proposition 8, which is also before the Court, writes SCOTUSblog’s Lyle Denniston. More on all of Friday’s filings in U.S. v. Windsor can be found here from SCOTUSblog.

Meanwhile, the Court kicks off what could prove to be another busy week today. In addition to oral arguments this week on cases including Maryland v. King, which challenges states’ ability to collect DNA evidence from arrestees without a warrant, the Court will hand down opinions Tuesday and Wednesday in pending cases. Check back on our Supreme Court Report for the latest news from the justices.


Sotomayor on getting over her ‘reflexive terror’

Becoming a Supreme Court justice is, no doubt, very cool. But it is also petrifying – at least in the beginning, admits Justice Sonia M. Sotomayor.

“The first year that I face the challenges of any new environment has always been a time of fevered insecurity, a reflexive terror that I’ll fall flat on my face,” Sotomayor told PBS’s Gwen Ifill Wednesday, according to a transcript from Federal News Service (a sister company to Lawyers USA).

How did she get over the insecurity? By working hard “with compulsive intensity and single-mindedness until I gradually feel more confident,” she said. And by taking the advice of those who had been there.

“We’re not born anything,” she explained. “We’re not born a lawyer; we’re not born a judge; we’re certainly not born a justice, which is something that Justice John Paul Stevens reminded me during my first year on the bench one day, when I was actually disclosing to him how anxiety-ridden I was about being a justice. And he just touched upon a reality for me. He said, Sonia, none of us is born a justice. We grow into becoming one.”


The Funniest Justice, week 9: The joys of taxes and edamame

After asking several questions in a futile effort to calculate a foreign tax rate during oral arguments Wednesday in PPL Corp. v. Commissioner of Internal Revenue, an exasperated Justice Stephen G. Breyer gave up.

“All right. I have said enough,” Breyer said. “My law clerks would have picked this up. They would have written it down and I will be able to go back with the transcript to study it, which I will do.”

That comment earned Breyer one of his five laughs from this holiday-shortened oral argument week, making him this week’s Funniest Justice – and giving him a real shot at overtaking Justice Antonin G. Scalia in our term-long tally.

But it was Justice Elena Kagan who was the breakout comedian this week, earning a career-high four laughs. During oral arguments in the patent case Bowman v. Monsanto Co., she drew chuckles by speculating whether a 10-year-old could inadvertently infringe a soybean seed patent by growing plants from edamame.

When attorney Seth Waxman informed Kagan that edamame cannot produce soybean plants, Kagan responded: “And I thought I was being so clever, too.” More laughs.

Here are the latest standings:

Justice Antonin G. Scalia: 27

Justice Stephen G. Breyer: 24

Chief Justice John G. Roberts Jr.: 8

Justice Anthony M. Kennedy: 6

Justice Elena Kagan: 5

Justice Sonia M. Sotomayor: 4

Justice Clarence Thomas: 1

Justice Samuel A. Alito, Jr.: 1

Justice Ruth Bader Ginsburg: 0


Recess is over

The justices of the U.S. Supreme Court return to the bench today after their four-week winter recess. In addition to hearing oral arguments in two cases – including a closely-watched patent matter involving use of genetically altered soybean seeds – the Court is also expected to issue orders. More to come on today’s activities at the Court later on Lawyers USA.

Sotomayor switches vote on courtroom cameras

It seems that Justice Sonia M. Sotomayor has joined the majority on an issue that has been before the U.S. Supreme Court for years.

While Sotomayor once said she’d had positive experiences with allowing cameras in the courtroom – a move strongly opposed by many of her colleagues on the bench – she now seems to be having second thoughts.

“I think the process could be more misleading than helpful,” Sotomayor said, speaking at a recent event in New York, according the New York magazine.  Folks trying to use oral arguments to glean how justices are leaning in a particular case will likely get it wrong, just based on the nature of how the Court works, she said.

“Every Supreme Court decision is rendered with a majority opinion that goes carefully through the analysis of the case and why the end result was reached,” she said. “Everyone fully explains their views. Looking at oral argument is not going to give you that explanation. Oral argument is the forum in which the judge plays devil’s advocate with lawyers.”

Sotomayor and the other justices return from their winter break to conference privately today, and oral arguments resume on Tuesday.

Scalia skips ‘childish’ presidential speech, gives his own

While six of his colleagues sat front and center for President Barack Obama’s State of the Union address Tuesday, Justice Antonin G. Scalia was across town addressing the Smithsonian Associates at George Washington University.  And he wasn’t exactly sad to be missing the president’s speech.

“It has turned into a childish spectacle, and I don’t think that I want to be there to lend dignity to it,” Scalia said of the president’s annual address, according to USA Today.

But, Scalia said, the timing of his own event was purely coincidental. “The State of the Union is not something I write on my calendar,” Scalia said. “I didn’t set this up tonight just to upstage the president.”

Three justices skip State of the Union

Three years ago, Justice Samuel A. Alito Jr. famously shook his head and mouthed the words “not true” during President Barack Obama’s State of the Union address in response to Obama’s admonition of the justice’s decision in Citizens United. And Alito has not since been seen in the House chamber during the president’s annual address.

Alito was one of three justices to skip the event last night: Justices Antonin G. Scalia and Clarence Thomas were absent as well.