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Antonin Scalia

In healthcare case, is Obama administration trying to woo Scalia?

Is there any way to convince Justice Antonin Scalia that the Commerce Clause gives Congress the authority to mandate health care coverage? The conservative justice is seen as a virtual surefire vote on the side of the challengers to the federal health care law.

But in an amicus brief filed Friday, the Justice Department relies heavily on a Supreme Court case which held that the Commerce Clause gave the government the authority to prohibit individuals from growing medical marijuana for their own use despite a California state law making it legal. And, as Talking Points Memo DC points out, that reasoning was backed by Scalia himself.

In the 2005 case Gonzales v. Raich, the Scalia joined the Court’s 6-3 majority. Justice John Paul Stevens wrote for the majority that: “Congress can regulate purely intrastate activity that is not itself ‘commercial,’ in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.

While the reasoning in that case is relied upon heavily by the government, it may not necessarily be the ticket to woo Scalia to the government’s side. Though he joined the majority in judgment, Scalia also wrote a concurrence that explained – and limited – his embrace of Commerce Clause power in the case.

“[U]nlike the channels, instrumentalities, and agents of interstate commerce, activities that substantially affect interstate commerce are not themselves part of interstate commerce, and thus the power to regulate them cannot come from the Commerce Clause alone,” Scalia observed.

The Funniest Justice, week 6: Patently funny

“Look, anything can be transformed into a process,” Justice Stephen Breyer told Solicitor General Donald Verrilli Wednesday during oral arguments in the patent case Mayo Collaborative Services v. Prometheus Laboratories, “Look at those real estate ones, lawyers ones. I have a way of making a great argument in the Supreme Court. You know, you could patent some of your arguments.”

This was one of four funny comments from Breyer during this week of oral arguments, making him this week’s top laugh earner. Justice Antonin Scalia got three chuckles, while Justice Anthony Kennedy earned two laughs.

Here are the standings after six weeks:

Justice Antonin Scalia: 21

Justice Stephen Breyer: 16

Chief Justice John G. Roberts: 9

Justice Anthony Kennedy: 3

Justice Ruth Bader Ginsburg: 1

Justice Elena Kagan: 1

Justice Clarence Thomas: 0

Justice Samuel Alito: 0

Justice Sonia Sotomayor: 0

The Funniest Justice, week 4: Lazy laughter

During oral arguments Tuesday in the case National Meat Association v. Harris, the Justice Stephen Breyer asked if the Court had to “write an 11-part opinion” dissecting each individual provision of a state statute to determine if it was preempted by a federal meat inspection law.

“I’m not trying to get out of work,” Breyer said, drawing laughter from the audience. “I just want to know.”

Without missing a beat, Justice Antonin Scalia chimed in.

“I’d like to get out of the work, to tell you the truth,” Scalia said as the crowd laughed again.

This week, Scalia broke open a wide lead in this terms funniest justice contest, earning a whopping eight laughs during oral arguments. Breyer earned three, while Chief Justice John Roberts and Justice Ruth Bader Ginsburg each made the crowd chuckle once.

Here are the standings so far:

Justice Antonin Scalia: 15

Justice Stephen Breyer: 10

Chief Justice John G. Roberts: 7

Justice Elena Kagan: 1

Justice Ruth Bader Ginsburg: 1

Justice Anthony Kennedy: 0

Justice Clarence Thomas (silence continues): 0

Justice Samuel Alito: 0

Justice Sonia Sotomayor: 0

Scalia’s hip-hop culture lesson

During oral arguments in the case Smith v. Cain Tuesday, attorney Kannon K. Shanmugam was tasked with more than just convincing the Court that New Orleans prosecutors withheld material impeachment evidence in violation of Brady v. Maryland. He also had to teach Justice Antonin Scalia a little bit about 1990s-era hip-hop culture.

“There were five other suspects who had gold teeth and low-cut haircuts” besides the defendant in the case, Shanmugam explained at one point.

“Faded haircuts and gold teeth were not a unique characteristic?” Justice Sonia Sotomayor asked.

“They were not uncommon in the 1990s,” Shanmugam said.

But Scalia seemed equally puzzled and intrigued.

“They are uncommon to me,” Scalia said, drawing laughter from the audience.

Scalia needed more clarification from Shanmugam to paint a clearer picture.

“These were not gold teeth that were implanted, right?” Scalia asked as onlookers in the press gallery and audience continued to snicker. “Was it some kind of a mouthpiece of gold?”

Shanmugam knew his limitations. “I have to admit that my familiarity with this practice is perhaps not that much greater than yours, Justice Scalia,” Shanmugam admitted.

“I’m sorry to hear that,” Scalia said.

Scalia: Justices ‘don’t owe anybody anything’

The U.S. Supreme Court often weighs in on politicized subjects – this term alone the Court is likely to rule on cases involving the Obama administration’s health care law, Arizona’s immigration law and affirmative action policies at Texas and Michigan colleges. But Justice Antonin Scalia said the justices focus only on the law, not the politics.

“I don’t care a fig if a statute has been passed by a Democrat or Republican,” Scalia told a group of Chicago-Kent College of Law students Tuesday, according to the Northwest Herald. “Once you’re on the court, you don’t owe anybody anything. Justices are notorious ingrates.”

Scalia did weigh in on a political subject of sorts. When the justice, who was raised in Queens, was asked if he preferred thick Chicago-style pizza or the thin, foldable New York variety, Scalia picked the former.

“I like so-called deep dish, it’s very tasty,” he said to cheers from the audience. “But it should not be called a pizza. It should be called a tomato pie.”

The Funniest Justice, week 2: The arm’s-length joke

During oral arguments Wednesday in the case considering whether strips searches of individuals jailed on minor offenses violates the Fourth Amendment, attorney Carter Phillips was asked how close prison officials get to the inmates.

“It almost certainly would have been about an arm’s length, because [the jail officials are] handing them clothes to change into,” Phillips said. “It is sort of hard to be longer than arm’s length and actually get the clothes into his hand.”

“Two arms’ lengths,” corrected Justice Antonin Scalia. “I mean, [the inmate] could reach out, right?”

And with that laugh, Scalia moves into a tie with the chief justice in our weekly Funniest Justice tally. Here are the standings after week 2:

Chief Justice John G Roberts: 3

Justice Antonin Scalia: 3

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

Scalia and Breyer testify, debate before Congress

After oral arguments concluded at the U.S. Supreme Court yesterday, Justices Antonin Scalia and Stephen Breyer had another appearance to make – before Congress.

The justices traveled across the street from the Supreme Court building to testify before the Senate Judiciary Committee yesterday, where Scalia lamented the declining in quality of federal judges. That decline, he said, was caused by Congress’ overzealous criminal lawmaking, which created the need for so many more judges.

“Federal judges ain’t what they used to be,” Scalia told the committee, according to Mark Sherman of the Associated Press. The federal judiciary is “not as elite as it used to be.”

The justices, never afraid to publicly disagree, expressed their different views of constitutional interpretation.

“I’m hoping that the ‘living Constitution’ will die,” Scalia said at one point, according to the Huffington Post’s Mick Sacks. Breyer responded by repeating a nearly 200-year-old quote by Chief Justice John Marshall: “It is a constitution we are expounding” because it is “to be adapted to the various crises of human affairs.””

Gaffe puts Scalia in the obits

Justice Antonin Scalia is alive and well.

This is important to clarify, considering  readers of the Washington Post this weekend saw a picture of Scalia accompanying an obituary – for someone else.

The gaffe involved the obituary of Peter Terpeluk, Jr., a Republican fundraiser and former U.S. ambassador to Luxembourg. The Post used a photo submitted by Terpeluk’s family showing Terpeluk posing with Scalia – but the shot was inadvertently cropped to show Scalia instead of Terpeluk. The paper corrected the mistake in Monday’s paper and online, and the mistake was also noted by the publication’s ombudsman.

Scalia’s silver anniversary

After officially announcing the start of the Supreme Court’s October 2011 Term, Chief Justice John G. Roberts took a moment to mark another milestone: Justice Antonin Scalia’s quarter century on the Court.

Roberts noted that Scalia was confirmed on Sept. 26, 1986, and that he heard his first oral argument “on the first Monday in October, 25 years ago.”

“The place has not been the same since,” Roberts said, drawing laughs from the audience as well as from the justices – Scalia included.

Supreme Court grants 11th hour execution stay

Just before Duane Edward Buck was set to be executed in Texas Thursday night for a double murder, the U.S. Supreme Court granted a stay of execution while the justice decide whether to take up his case.

Justice Antonin Scalia granted the order on the Court’s behalf, the Wall Street Journal’s Law Blog reported. Buck claims that testimony during the sentencing phase of his trial that he is likely to be more violent because he is black impacted his sentence.

Buck had already eaten his last meal when the stay order was issued.