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.