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The Funniest Justice, week 12: Skimming for laughs

During oral arguments yesterday in U.S. v. Windsor – the challenge to the federal Defense of Marriage Act – Justice Ruth Bader Ginsburg asked the attorney for the law’s defenders whether denying federal marriage recognition to same-sex couples legally married under state law was  “diminishing what the state has said is marriage.”

“You’re saying no, the state said two kinds of marriage; the full marriage, and then this sort of . . .  skim milk marriage,” Ginsburg said, drawing – for the first time this term – laughs from the audience, according to the Supreme Court’s official transcripts.

And with that, for the first time since DC Dicta began tallying the justices’ laughs-worthy comments, every single justice is on the board (most years it was the usually-silent Justice Clarence Thomas who always had the goose egg).  This week, Justice Antonin G. Scalia was again the top laugh earner, adding five more to his sizable lead.

Here are the standings after 12 oral argument weeks:

Justice Antonin G. Scalia: 48

Justice Stephen G. Breyer: 38

Chief Justice John G. Roberts Jr.: 11

Justice Anthony M. Kennedy: 9

Justice Sonia M. Sotomayor: 7

Justice Elena Kagan: 7

Justice Samuel A. Alito, Jr.: 3

Justice Clarence Thomas: 1

Justice Ruth Bader Ginsburg: 1


Justices could be gun shy in round 2 of same-sex marriage arguments

Yesterday, when considering the constitutionality of California’s Proposition 8, several justices indicated that it may be simply too soon.

“You want us to step in and render a decision based on an assessment of the effects of this institution [of same-sex marriage] which is newer than cell phones or the Internet?” asked Justice Samuel A. Alito Jr. at one point yesterday. “I mean, we do not have the ability to see the future.”

Now court watchers will see if the justices express the same reluctance as they take up the law that prohibits federal recognition of same-sex marriage – the Defense of Marriage Act. Follow DC Dicta on Twitter (@DCDicta) for updates from the courthouse, and check Lawyers USA online later for an analysis o f the arguments.

Possible new twist in Prop 8 case?

The justices of the U.S. Supreme Court tussled over California’s same-sex marriage ban during oral arguments that were at times heated, pointed and even emotional. But the court also hinted that the case could have a surprise ending.

Justice Anthony M. Kennedy and other justices suggested the possibility that the case was taken up entirely too soon. With so little evidence about the societal effects of same-sex marriage, some asked whether the case had been improvidently granted.

“The sociological information is new. We have five years of information to weigh against 2,000 of years of history, or more,” Kennedy said during oral arguments Tuesday in Hollingsworth v. Perry.

Read more here at Lawyers USA online.

Waiting for the Supreme same-sex marriage showdown

People hoping for a chance to witness Supreme Court oral arguments this week in the two challenges to same-sex marriage laws  began lining up – or paying others to line up – outside the courthouse on Friday. Monday morning a wintry mix of snow, rain and wind did not quell their resolve to be a part of history.

Tuesday the justices take up the challenge to California’s same-sex marriage ban in Hollingsworth v. Perry, and Wednesday the court will hear U.S. v. Windsor, the challenge to the federal Defense of Marriage Act. DC Dicta will be tweeting before and after arguments and later recap on this blog and on LawyersUSAOnline.com.

The Funniest Justice, week 11: Eating Scalia’s words

During oral arguments Wednesday in Dan’s City Used Cars, Inc. v. Pelkey , Justice Antonin G. Scalia quoted an excerpt of a Supreme Court opinion, then turned to attorney Andre Bouffard to grill him.

“So you want us to eat those words, [say] they were wrong, or somehow you don’t come within them?” Scalia pressed.

“Respectfully, Justice Scalia,” Bouffard answered, “I think those words came from your dissent in that case.”

“Ah,” Scalia said, drawing laughs from the courtroom. “I forgot that.”

We don’t know if Scalia was aware that Justice Stephen G. Breyer was closing in on his lead in the Funniest Justice tally, but this week he was an absolute comedian on the bench, drawing a whopping nine laughs to pad his lead. Breyer showed his funny side once again, gaining four laughs. Here’s the tally after 11 weeks.

Justice Antonin G. Scalia: 43

Justice Stephen G. Breyer: 34

Chief Justice John G. Roberts Jr.: 9

Justice Anthony M. Kennedy: 6

Justice Sonia M. Sotomayor: 6

Justice Elena Kagan: 6

Justice Samuel A. Alito, Jr.: 3

Justice Clarence Thomas: 1

Justice Ruth Bader Ginsburg: 0

Court to release same-day audio of same-sex marriage arguments


Photo: (Maximilian Franz/The Daily Record)

The U.S. Supreme Court announced Tuesday that it will release same-day audio of oral arguments in next week’s same sex marriage cases.

On Tuesday, the court will take up the constitutional challenge to California’s same-sex marriage ban formerly known as Proposition 8 in Hollingsworth v. Perry. Wednesday, the Court will an extended argument in the federal Defense of Marriage Act challenge U.S. v. Windsor.

The audio from the arguments should be available on the court’s website by early afternoon each day.

Breyer and Kennedy land on TMZ

Though Supreme Court justices are tasked with deciding the nation’s most consequential legal issues, they are also usually able to walk to streets incognito. Few Americans can identify members of the Court on sight or even name most of them. But perhaps that is changing, because last week Justices Anthony M. Kennedy and Stephen G. Breyer landed on TMZ, the gossip website that usually focuses on celebrities and reality stars.

As Breyer and Kennedy entered a congressional office building on their way to testify about the judiciary’s budget, a TMZ reporter asked a question inquiring minds apparently wanted to know: “Justice, do you ever watch ‘Judge Judy’ or ‘Judge Mathis’ sometimes?”

Kennedy ignored the reporter. Breyer simply shook his head. It’s unclear whether the head shake meant that Breyer does not watch the courtroom television shows, or if he simply was in disbelief.

Will justices’ personal family choices shape views in same-sex marriage cases?

Some are single, others are married. Some divorced, and some remarried. Some married partners from different racial or ethnic backgrounds. Some have biological children, some adopted children, and some chose not to have children.

Who are they? The justices of the U.S. Supreme Court. And as they take up a pair of cases challenging federal and state laws banning same-sex marriage recognition, their own personal experiences could help shape their views of the parties’ arguments, the AP’s Mark Sherman writes.

One of the arguments advanced by proponents of California’s Proposition 8 and the federal Defense of Marriage Act is that marriage was intended for the creation of biological children, and should therefore be limited to opposite-sex couples. Those challenging the laws rely on case law such as a  1967 Supreme Court decision striking down state law interracial marriage bans as unconstitutionally discriminatory.

While the justices rarely cite personal experience in their opinions, they “also are not immune to considering how they might be affected by the course one side or the other is advocating in a dispute before them,” Sherman wrote.


A conversation the NAACP chief will never forget

In Washington, folks generally know to talk softly – particularly if the talk is about someone else. Ears are everywhere, and the words may get back to the subject.  But it’s also a good idea to know who you are talking to – a lesson apparently learned by NAACP President Benjamin Jealous Saturday as he chatted with a fellow guest at the annual Gridiron Dinner this past weekend.

According to the Washington Post, the guest commented to Jealous about the good job NAACP Legal Defense Fund lawyer, Debo P. Adegbile, did arguing the Voting Rights Case before the U.S. Supreme Court. Jealous agreed. But, Jealous noted, the U.S. solicitor general was awful.

That’s when Jealous’ conversation partner identified himself: Solicitor General Donald B. Verrilli Jr.

Apparently mortified, Jealous apologized and excused himself.

Jealous denied the account, but the Post noted that two witnesses confirmed the conversation. Again, ears everywhere.

Ginsburg’s early birthday bash

Justice Ruth Bader Ginsburg doesn’t officially turn 80 years old until Friday, but she got the party started over the weekend.

During a birthday bash held Saturday in Ginsburg’s honor, members of the Washington National Opera presented the eldest member of the U.S. Supreme Court – and avid opera fan – with an ivory shawl, a replica of that worn in the new production of Bellini’s “Norma,” according to the Washington Post. Then tenor Corey Evan Rotz serenaded the justice with an aria as guests including NPR’s Nina Totenburg and high court litigator Miguel Estrada looked on.