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Scalia: The English teacher

If you argue before the Supreme Court, there are many things you must remember – things that have absolutely nothing to do with your case. For example, never refer to a justice by the wrong name. Never refer to a statute if the text of that statute is not in your brief. And now we have another rule: never, ever use a word that doesn’t exist in the English language. That will irk Justice Antonin Scalia.

Attorney Randolph Barnhouse learned that lesson yesterday. During his oral argument he first used the word “inchoate,” which means not completely formed. So far, so good.

But then, in reaching to find an antonym, Barnhouse used the word “choate.” That’s when Scalia piped up.

“There is no such adjective,” Scalia said. “I know we have used it, but there is no such adjective as ‘choate.’ There is ‘inchoate,’ but the opposite of ‘inchoate’ is not ‘choate.'”

“All right,” Barnhouse said, wanting to move on to the substance of his argument. But Scalia wasn’t done.

“It’s like ‘gruntled,'” Scalia said, dropping the “dis” from “disgruntled.”

“Well I’m wrong on the [word], but I think I’m right on the law, Your Honor,” Barnhouse said. But Scalia didn’t seem to hear him.

“Exactly. ‘Disgruntled’  – and the opposite of ‘disgruntled’ is ‘gruntled,'” Scalia said, not letting it go.

“Is ‘gruntled,” Barnhouse said, finally playing along as the audience laughed.

HT to the AP’s Mark Sherman.

Scalia and Breyer take their disagreements on the road

Those who watch oral arguments at the U.S. Supreme Court regularly know that Justices Antonin Scalia and Stephen Breyer are not afraid to openly disagree – and that they often do it in a lively way. But on Monday, the two justices gave a Tucson audience the opportunity to see them spar away from the bench.

The topic of the justices’ discussion was constitutional interpretation, and the justices wasted no time explaining the differences in their philosophies, and gently needling each other a bit in the process.

NBC News legal correspondent Pete Williams, who moderated the event sponsored by the Rehnquist Center at the James E. Rogers College of Law, asked about the 2005 case Roper v. Simmons, in which the Court ruled the death penalty for juveniles unconstitutional in a split vote. Scalia and Breyer talked of how they came down on opposite sides.

Scalia, one of the four dissenters in the case, explained his strict construction approach of considering only the framers’ intent.

“The death penalty is not unconstitutional because the framers said it wasn’t unconstitutional,” Scalia said, adding:  “For this Court, my Court, to just say: ‘[Executing juveniles] does not seem to us a good idea and therefore it’s unconstitutional,’ I just don’t under stand that.”

Scalia pointed to Breyer. “He’ll explain it, though,” Scalia said, drawing laughter from the audience.

Breyer said the Constitution’s phrase “cruel and unusual punishment” doesn’t explain itself, and therefore justices have the difficult task of defining it based on the values espoused by the Constitution.

“The question is, where do we draw the line to day, not where we drew it in the 18th century,” Breyer said. “Where do we draw the line today in terms of the values enact in the constitution?”

Scalia, as expected, disagreed completely.

” I mean what circumstances have changed?” Scalia said. “Death was death then. Death is death now. [Audience laughs] Eighteen was 18 then. Eighteen is 18 now. You’re talking about applying different values.

“It is a difficult job,” Scalia continued. “Steve, I don’t know how you do it. I’m just glad I don’t play that game. I would lie awake at night, you know-” Scalia looked at the ceiling, fretfully twiddling his fingers.

As the audience laughed again, Breyer jumped in.

“Are you going to execute people for embezzlement?” Breyer asked Scalia. “I know you won’t for parking tickets. What about speeding?” More laughs.

“I would not execute someone for embezzlement, but it’s not unconstitutional,” Scalia said, leaning forward.

Williams asked about other archaic forms of punishment meted out at the time the Constitution was written, such as ear notching or the pillory.

“If cases like that arose, would you find they were constitutional?” Williams asked.

“I’d find they were constitutional and stupid,” Scalia said.

Watch the full video of the justices’ Conversation On The Constitution: Principles of Constitutional and Statutory Interpretation.

Monday status conference: Night at the Opera

We knew the Justices Antonin Scalia and Ruth Bader Ginsburg love the opera. Well, this weekend, they were in the opera.

Saturday night, the justices were on stage for the entire performance of the Washington National Opera’s Ariadne auf Naxos. Scalia, Ginsburg and her husband, Georgetown University law professor Martin Ginsburg, had nonspeaking roles as dinner party guests, and were seated at tables for the 90-minute performance.

But the highlight of the evening was reportedly when Russian soprano Lyubov Petrova perched herself right on Scalia’s lap and draped an arm around him. The audience to burst into applause, according to reports.

Afterwards Ginsburg said it was “an entirely enchanting evening.”

(Photos By Karin Cooper for The Washington National Opera)

More on the performance from The Baltimore Sun’s Clef Notes blog and the Associated Press.

Here’s some other legal news to kick off your week:

‘Red Flags’ of confusion: Lawyers take heed – the new “red flags” identity protection rules enacted last year are set to be enforced starting in November. Or maybe they won’t. And those rules apply to you. Or maybe they don’t. Confused yet? You are not alone. (Lawyers USA)

New sentencing commission chair: Six months after his nomination by President Barack Obama, Vermont federal district court Judge William K. Sessions III was confirmed by the Senate as chair of the United States Sentencing Commission. (Lawyers USA)

Hate crimes bill heads to POTUS: The Senate has passed an amendment to the defense spending bill that would give expand federal protections and investigatory powers in connection with hate crimes motivated by sexual orientation and gender identity. (Lawyers USA)

CFPA bill advances: The House Financial Services Committee has approved legislation that would create a new agency to promulgate rules and impose penalties for unfair and deceptive trade practices, fraud and data security breaches. (Lawyers USA)

Stirring the pot: Health and law enforcement officials around the nation are scrambling to figure out how to regulate medical marijuana now that the federal government has decided it will no longer prosecute legal users or providers. (The New York Times)

The Funniest Justice, week 2: The goose, the gander and the giggle

During yesterday’s oral argument in Perdue v. Kenny A., Pratik A. Shah, assistant to the Solicitor General, argued that judges should only award attorney’s fee enhancements in extraordinary cases – like when the lawyer had to represent a very unpopular client.

“For extraordinary circumstances?” Justice Anthony Kennedy said. “What about a very, very popular cause and he wins and they are beating his door down? Can we reduce it for that?”

As the audience laughed, Shah continued.

“No, Your Honor, that would not require a reduction,” Shah said.

Justice Antonin Scalia leaned forward.

“Well, I mean, what is sauce for the goose is sauce for the gander,” he said, drawing laughter. “I mean, if you get rewarded for unpopularity, you ought to be get penalized for popularity.”

Scalia was the king of the one-liners this week, which earned him a whopping eight laughs during this holiday-shortened week at the Supreme Court, and boosted him back to the top of out ongoing tally.

Here is the laugh count:

Justice Antonin Scalia: 13

Chief Justice John G. Roberts, Jr.: 9

Justice Anthony Kennedy: 3

Justice Stephen Breyer: 3

Justice John Paul Stevens: 2

Justice Samuel Alito: 1

Justice Clarence Thomas (Thomas has remained silent during oral arguments since Feb. 22, 2006): 0

Justice Ruth Bader Ginsburg: 0

Justice Sonia Sotomayor: 0

The Funniest Justice, week 1: A *pop* of the tongue

During oral arguments Tuesday, Justice Antonin Scalia was trying to figure out just how violent a “violent felony” needs to be to qualify for a sentence enhancement under a federal statute.

When Leondra R. Kruger, assistant to the Solicitor General, argued that a crime that poses a “sufficient potential for harm” should qualify, Scalia perked up.

“Congress meant the threat?” Scalia asked.  “It doesn’t even have to be the act? ‘You know, if you don’t shut up, I am going to come over and thwonk you on your shoulder with my index finger. I’m going to-‘” (Scalia points out his index finger and makes a “pop” sound with his tongue). “This is a violent felony under this statute which gets him how many more years?”

“It creates a mandatory minimum of 15 years,” Kruger answered.

“Fifteen years for (pops his tongue again)?”

Even when making the job of the court reporter a little more challenging – how to you transcribe a tongue pop? – Scalia knows how to draw a laugh at in the courtroom. He scored four laughs during the term’s first week of oral arguments. But it wasn’t enough to put him in the lead – Chief Justice John G. Roberts, Jr. also drew laughter from the crowd four times, allowing him to keep his lead as The Funniest Justice so far.

Here is the laugh count:

Chief Justice John G. Roberts, Jr.: 6

Justice Antonin Scalia: 5

Justice Stephen Breyer: 3

Justice John Paul Stevens: 2

Justice Anthony Kennedy: 2

Justice Samuel Alito: 1

Justice Clarence Thomas (Thomas has remained silent during oral arguments since Feb. 22, 2006): 0

Justice Ruth Bader Ginsburg: 0

Justice Sonia Sotomayor: 0

(Standings are based on the Court’s official transcripts, and include the re-argument of Citizens United v. FEC in September)

P.S. Oh, how did the court reported indicate Scalia’s tongue pop noise? As so: “(snap)”

Supremes debate dog fighting, the definition of ‘kill’ and The Human Sacrifice Channel

A federal law criminalizing the sale of videos depicting animal cruelty seems in constitutional peril, after Supreme Court oral arguments today.

In arguments in U.S. v. Stevens, a challenge to a law that makes it illegal to create or sell depictions of animal cruelty, most of the justices seemed to indicate that the statute cuts too broad an encroachment on the First Amendment.

For example, some justices were not at all moved by deputy Solicitor General Neal Katyal’s argument that the law – passed in an effort to ban so-called “crush videos” depicting women crushing small animals to death with their stilettos, dominatrix-style – could not be applied to hunting videos.

“Some depictions of hunting are pretty gruesome,” said Justice Anthony Kennedy.

When Katyal pointed out that the statute was limited depictions of cruelty, defined as “maimed, mutilated, tortured, wounded, or killed,” Justice Antonin Scalia jumped in.

“Or ‘killed!'” Scalia exclaimed. “How do you limit ‘killed?’ …‘Kill’ has one meaning, which is ‘kill!’ … You don’t have a single case in which an absolutely clear word like ‘kill’ is given a more narrow meaning because of other words that are different from that word.”

Of course that didn’t mean that Patricia Millett, the attorney arguing against the statute, didn’t get some memorable questions.

When Millett pointed out that the underlying dog fighting in the video at issue in the case wasn’t illegal because it took place in another country where it was allowed, Justice Samuel Alito asked: “What if [people] like to see human sacrifices?  Suppose that is legally taking place someplace in the world. I mean, people here would probably love to see it. Live, pay-per-view, on The Human Sacrifice Channel. Is that ok?”

As people in the courtroom laughed, Millett tired to qualify her answer by saying Congress must act in an “even-handed” way. Alito had more questions.

“Suppose you have The Ethnic Cleansing Channel on cable TV, and [said ethnic cleansing] is taking place in a country that’s beyond our power to influence. Congress couldn’t prohibit that?”

“The fact that conduct is repulsive or offensive does not mean we automatically ban the speech,” Millett answered.

The Funniest Justice: The OT09 pre-season

Toward the end of attorney Ted Olson’s oral argument time today in the case Citizens United v. FEC, Justice John Paul Sevens asked Olson if he would spend some of his upcoming rebuttal time to address a point made in an amicus brief.

“I will, Justice Stevens,” Olson replied, preparing to sit down.

“Why don’t you just tell us now?” Chief Justice John G. Roberts, Jr. said, as members of the audience laughed.

“Don’t keep us in suspense!” Justice Antonin Scalia added, drawing more laughter.

Although the October 2009 Term of the Supreme Court doesn’t officially begin until, well, October, today’s re-argued campaign finance case gives us an early start on this term’s contest to see who is The Funniest Justice!

Who said an issue like campaign finance reform can’t be fodder for funnies? Not only did Olson himself and Solicitor General Elena Kagan draw some laughs, so did four of the Court’s justices. But it was Roberts who drew two laughs from the crowd today, giving him an early lead in the contest which, for two years in a row, has gone to Justice Scalia.

So here are the Funniest Justice standings after the Court’s first oral argument:

Chief Justice John G. Roberts, Jr.: 2

Justice John Paul Stevens: 1

Justice Antonin Scalia: 1

Justice Anthony Kennedy: 1

Justice Clarence Thomas (Note: Thomas has remained silent during oral arguments since Feb. 22, 2006): 0

Justice Ruth Bader Ginsburg: 0

Justice Stephen Breyer: 0

Justice Samuel Alito: 0

Justice Sonia Sotomayor: 0

Scalia: Only ‘silk purse’ clerk candidates need apply

Hey, law students: do you have dreams of clerking for Supreme Court Justice Antonin Scalia? Well, unless NYU Law was your “safe school,” you probably don’t have a shot.

At a recent speaking engagement, Scalia was asked by a law student what she could do to be successful, despite the fact that she isn’t attending one of the nation’s elite law schools. According to a New York Times report, Scalia started off diplomatic.

“Just work hard and be very good,” he said.

Could that hard work and goodness result in Scalia choosing the student as a clerk? Um, no, the justice said.

“By and large, I’m going to be picking from the law schools that basically are the hardest to get into,” Scalia said. “They admit the best and the brightest, and they may not teach very well, but you can’t make a sow’s ear out of a silk purse. If they come in the best and the brightest, they’re probably going to leave the best and the brightest, O.K.?”

Students get Scalia’s number, professor gets his ire

After Supreme Court Justice Antonin Scalia once said in a speech that it was “silly” to believe that “every single datum about my life is private,” a Fordham Law professor created a little project for his students to test that theory.

The task: use legal, public available data to gather personal information about the justice. The result: a 15-page dossier which included a host of info about Scalia, from his address, phone number and value of his home, to his favorite films, culinary tastes and photographs of his grandchildren, according to Above The Law.

Professor Joel Reidenberg said the exercise was designed to show how readily available private data is available on the internet, and to spark discussion about the level of legal protection such information should have.

Scalia, in a statement to ATL, gets the point of the assignment. But he was still far less than happy that it happened.

“I stand by my remark [that] it is silly to think that every single datum about my life is private,” Scalia said in the statement to ATL “I was referring, of course, to whether every single datum about my life deserves privacy protection in law.”

While noting that the assignment was legal, he still called it “quite irresponsible.”

“Prof. Reidenberg’s exercise is an example of perfectly legal, abominably poor judgment. Since he was not teaching a course in judgment, I presume he felt no responsibility to display any.”

[HT: ABA Journal]

And the Funniest Justice is…

The final oral argument of the Supreme Court’s October 2008 Term is in the history books, which means it is time for DC Dicta to reveal which justice earned the most laughs during oral arguments this term. The answer, for those who have been following the standings all year, is not a surprise.

With 45 chuckle-inducing comments and questions, Justice Antonin Scalia is once again The Funniest Justice.

Scalia didn’t garner nearly as many giggles as he earned during the October 2007 term, when he won the Funniest Justice title with a staggering 74 laughs.

And this year, there was a much tighter race for second and third place. Justice Stephen Breyer spent much of the second half of the term within a few laughs of Scalia, and ended up just 10 laughs behind him. Last term, the second-funniest justice – Chief Justice John G. Roberts – took the No. 2 spot with only 23 laughs. This year the chief got five more laughs, but it only earned him the bronze.

So here are the final standings:

Justice Antonin Scalia: 45

Justice Stephen Breyer: 35

Chief Justice John Roberts: 28

Justice David Souter: 13

Justice John Paul Stevens: 12

Justice Anthony Kennedy: 11

Justice Ruth Bader Ginsburg: 5

Justice Samuel Alito: 3

Justice Clarence Thomas: 0 (Has remained silent during oral arguments since Feb. 22, 2006).