Are liberal members of Congress and the press trying to influence the outcome of the Supreme Court health care challenge by threatening to call the nation’s chief justice a name?

That is what a Wall Street Journal editorial asserts. And what is  the nasty label that is designed to sway Chief Justice John G. Roberts, Jr.? Activist.

The editorial points to recent press coverage suggesting that overturning the health care law would be a radical move tantamount to reversing New Deal era legislation, as well as recent comments made by  Senate Judiciary Chairman Patrick Leahy on the Senate floor, where he said he hopes Roberts has “a strong institutional sense of the proper role of the judicial branch.”

“The conservative activism of recent years has not been good for the Court,” Leahy said.

The full editorial can be found here, and Lawyers USA’s coverage of the Supreme Court, including the health care case, can be found on our Supreme Court Report.

He’s made cracks about bad dictionaries, deadpanned about deporting babies to China, and quipped that a justice’s job could at times violate the Eighth Amendment’s ban on cruel and unusual punishment.

By making the audience and other justices of the Supreme Court laugh during oral arguments more than five dozen times, Justice Antonin G. Scalia sailed to an easy victory as this term’s Funniest Justice. Since DC Dicta began keeping count, Scalia is undefeated.

So the real race was for second place. And though Chief Justice John G. Roberts, Jr. made a real contest of it, it was Justice Stephen G. Breyer who walked away with the silver this term, with Roberts coming in third.

According to the laugh count, as noted in the Court’s official transcripts, every justice earned at least one laugh this term except Justice Clarence Thomas, who hasn’t made a comment during oral arguments – humorous or otherwise – since Feb. 22, 2006. Let’s just hope that when he does speak, we’ll get a chuckle out of it.

Here is the final tally:

Justice Antonin Scalia: 63

Justice Stephen Breyer: 47

Chief Justice John G. Roberts: 26

Justice Anthony Kennedy: 11

Justice Elena Kagan: 7

Justice Samuel Alito: 5

Justice Sonia Sotomayor: 2

Justice Ruth Bader Ginsburg: 1

Justice Clarence Thomas: 0

Despite assurances from Chief Justice John G. Roberts that such a move was unnecessary and unwise, a group of lawmakers is pushing the Supreme Court to drop its current self-policing policy for recusals and formally adopt the same judicial code of ethics that binds other federal judges.

“Because the Supreme Court does not adhere to the code of conduct for (other) United States judges, they have granted themselves immunity from the standards of behavior that apply to every other justice in the land,’’ said Rep. Louise Slaughter, D-N.Y. yesterday during a press conference in front of the Court, according to the Democrat and Chronicle.

Slaughter is one of 31 lawmakers who sent a letter to the Court yesterday demanding that it adopt the Judicial Conference’s Code of Conduct. In his year-end report on the state of the judiciary, Roberts pushed back at the growing number of critics who questioned the way the justices decide whether or not to participate in a case, saying that the justices do consult the Code as well as other sources of ethical guidance. That the process works, he said.

“I have complete confidence in the capability of my colleagues to determine when recusal is warranted,” Roberts wrote.

Still critics have assailed, among other things, the decisions of Justice Clarence Thomas and Elena Kagan to participate in the case challenging the constitutionality of the health care law. The 31 democratic lawmakers who signed the letter to the Court also cited the close ties between Justices Antonin Scalia and Thomas to big conservative campaign donors.

During Monday’s oral arguments in Elgin v. U.S. Dept. of the Treasury, petitioner’s counsel made the point that some federal employees have no right to bring constitutional employment claims before the Merit Systems Protection Board, such as summer interns.

“I assume that’s for very different reasons,” than the employees at issue in the case, Chief Justice John G. Roberts said. “One because they are summer interns and you know, if they are impermissibly treated it’s kind of — they are summer interns.”

That comment was one of six the chief justice earned this week, making him the week’s Funniest Justice. Justices Antonin Scalia and Stephen Breyer were right on his heels, with five laughs apiece. Here are the standings for the term so far:

Justice Antonin Scalia: 40

Justice Stephen Breyer: 32

Chief Justice John G. Roberts: 20

Justice Anthony Kennedy: 6

Justice Samuel Alito: 5

Justice Elena Kagan: 2

Justice Ruth Bader Ginsburg: 1

Justice Sonia Sotomayor: 1

Justice Clarence Thomas: 0

We hope Chief Justice John Roberts presides over a piece of birthday cake today. The nation’s head jurist turns 57.

During oral arguments in the case Maples v. Thomas, attorney John C. Neiman, Jr., sought to explain why a state’s attorney sent a notice to a defendant – as opposed to his lawyer – that his time to file a petition for relief had expired.

“At that point in time, the State case was over,” Neiman siad. “So, it was hardly clear if [the prosecutor] was going to do something that he didn’t have to do under the rules.”

“Why did he do it, then?” asked Chief Justice John G. Roberts. “Just gloating that the fellow had lost?”

That remark earned the chief justice one of the three laughs he drew during this term’s first week of oral arguments, putting him in the lead of our first weekly tally of The Funniest Justice. The ever comedic Justices Antonin Scalia and Stephen Breyer were right behind him with two laughs apiece, and Justice Elena Kagan also drew chuckles from the audience once.

Here are the week 1 standings:

Chief Justice John G Roberts: 3

Justice Antonin Scalia: 2

Justice Stephen Breyer: 2

Justice Elena Kagan: 1

Justice Anthony Kennedy: 0

Justice Clarence Thomas (the silent type): 0

Justice Ruth Bader Ginsburg: 0

Justice Samuel Alito: 0

Justice Sonia Sotomayor: 0

Just because his colleague Justice Stephen Breyer likes to get some of his information from “the Tweeter,” as he calls it, don’t expect Chief Justice John G. Roberts to follow suit.

Speaking recently at the 4th Circuit Court of Appeals Annual Conference, Roberts said he does not “Tweet, whatever that is.”

But, he said, the proliferation of social media and other technologies has changed the U.S. Supreme Court in many ways – from the substantive legal issues they present, to rules that the justices must set for their law clerks. One of those rules: no Tweeting about the job.

“I sit down with incoming clerks at the beginning of the year,  as soon as we get back,” Roberts explained to the audience in remarks that were televised on C-SPAN, “ and go through a number of things they have to be aware of, and that’s one of them. It’s new. I tell them that they obviously shouldn’t be tweeting about what they’re doing, whether they have websites or whatever.”

Though Roberts clearly is not at ease with the lingo of the web, he said he certainly understands that seemingly harmless Internet chatter could tip off the public about opinions before they are released.

“A lot of it is inadvertent,” Roberts said. “They kind of think ‘well, I’m working really hard on this opinion this week, or getting ready for an argument.’ And you know, discerning people can look at that they are saying and try to put two and two together and figure out, maybe, what their boss is doing and all that. So even unintentionally they can sometimes reveal confidences. And, of course that’s very dangerous. So I advise them to just put all that on hold.”

But the justices must deal with social media on the job, Roberts said.

“The impact of new technology on substantive law is really quite significant,” Roberts said.  “[So] it’s going to be a great challenge … for many of us to try to keep up with the new technology. It’s one of the great things, again, with the law clerks. They come in and they know how all this stuff works and what it means. They are a resource for educating those of us that are behind the  curve.”

“This ‘suit has, in course of time, become so complicated, that . . . no two . . . lawyers can talk about it for five minutes, without coming to a total disagreement as to all the premises. Innumerable children have been born into the cause: innumerable young people have married into it;’ and, sadly, the original parties ‘have died out of it.’ A ‘long procession of [judges] has come in and gone out’ during that time, and still the suit ‘drags its weary length before the Court.’
“Those words were not written about this case, but they could have been.”

~ Chief Justice John G. Roberts, quoting Charles Dickens’ “Bleak House” to describe the long-running legal battle between the estate of oil tycoon J. Howard Marshall and the estate of pinup and reality star Anna Nicole Smith in Stern v. Marshall. (More on yesterday’s ruling here on Lawyers USA online).

Despite the disturbing facts underlying the case Camreta v. Greene, oral arguments at the Supreme Court Tuesday was a barrel of laughs, care of Chief Justice John G. Roberts and Justice Antonin Scalia.

(The laughs started even before oral arguments began, with Roberts’ “corny” announcement of the opinion in FCC v. AT&T Inc., as Slate’s Dahlia Lithwick points out.)

When attorney Carolyn A. Kubitschek began her argument asserting that there was “no case or controversy” between the parties, Roberts jumped right in.

“Then why are you here?” asked Roberts, drawing laughter from the crowd. “Why didn’t you just go away?” More laughs.

A little later, Scalia was trying to determine just when questioning a child at school without a parent present may run afoul of the Fourth Amendment.

“You said earlier that your office had advised the county not to seize children,” Scalia said to Oregon Attorney General John R. Kroger. “Are you advising them that they don’t have the right to talk to children? [What if] they are walking along the hall in the school, right? [And they] just come up alongside: “By the way, I wanted to ask you whether your mother–” More laughter.

At one point when Justice Sonia Sotomayor was asking Kubitschek a question, Scalia leaned forward, as if advising a friend, and told Kubitschek: “She’s helping you, I think.” Laughter.

But when Scalia himself was grilling Kubitschek a little later, Roberts pointed out: “He was not trying to help you.” More laughs.

When arguments were over, Roberts and Scalia each had five more laughs in our ongoing Funniest Justice tally.

Here are the full standings after 10 weeks:

Justice Antonin Scalia: 31

Justice Stephen Breyer: 20

Chief Justice John G. Roberts, Jr.: 18

Justice Anthony Kennedy: 7

Justice Ruth Bader Ginsburg: 4

Justice Samuel Alito: 2

Justice Sonia Sotomayor: 1

Justice Elena Kagan: 1

Justice Clarence Thomas: 0 (The silence since Feb. 22, 2006 continues…)

Supreme Court practitioners have many challenges – crafting complex legal arguments advocating for their clients, dealing with adverse precedent, and commanding a large body of legal research, to name a few. But once they approach the podium for oral arguments, the biggest challenge may be simply getting a word in edgewise.

That’s because the high court’s bench is hotter than ever, with the Court’s newest additions – Justices Sonia Sotomayor and Elena Kagan – proving to be much more vocal than their predecessors, the Washington Post’s Robert Barnes reports.

“They’re way more active than they’ve ever been,” veteran Supreme Court litigator Lisa S. Blatt told the Post. “As active as Justice [David] Souter was, Justice Sotomayor is more active. And as active as Justice [John Paul] Stevens was, Justice Kagan is more active than that.”

Justice Clarence Thomas may opt out of engaging in oral arguments, but his colleagues seem to more than make up for it. Supreme Court practitioner Carter Phillips said that, according to Justice Samuel Alito, the court averaged more than 70 questions per half-hour last term. That works out to 2.3 questions per minute – a rapid-fire pace.

As a result, Chief Justice John G. Roberts is often tasked with being a traffic cop of sorts, Barnes wrote. When two justices ask a question at the same time, it is Roberts who usually gives a nod deciding who will speak, and sets up a virtual queue of who is to speak next. He also sometimes gives attorneys a break from the rapid questioning, allowing them some time to actually answer them.

Supreme Court litigator David Frederick said Roberts’ experience arguing before the Court makes him particularly adroit at that task. “The chief justice has a sense of what it’s like to be on this side of the bench,” Frederick said. “He totally understands an advocate’s perspective.”