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The Funniest Justice: Ginsburg is first on the board (access required)

One thing is certain: the first Supreme Court justice to score a laugh during oral arguments this term was Justice Ruth Bader Ginsburg.

But just when that laugh happened is up for debate.

According to DC Dicta’s ears, it occurred during the very first oral argument of the term Monday in Ransom v. FIA Card Services.  When Justice Stephen Breyer questioned an attorney about the definition of automobile “ownership costs” under federal bankruptcy law, Breyer said: “That’s what I thought Justice Ginsburg was initially asking.”

“Yes, I was,” Ginsburg said, and there were audible chuckles in the courtroom.

But that laugh was not noted in the Court’s transcript. Since DC Dicta bases its official, if unscientific, tally of courtroom laughs on the transcript, that chuckle didn’t count.

But, undaunted, Ginsburg struck again – this time in Tuesday’s argument in NASA v. Nelson. When the attorney representing government contract employees objecting to a new federal background check procedure argued that it shouldn’t apply to those already employed, Ginsburg showed her commitment to gender equality.

“Are you then saying that these people have to be grandfathered – or grandparented – because they worked for 20 years?” Ginsburg said, drawing an official laugh.

But the week’s Funniest Justice was, unsurprisingly, Justice Antonin Scalia.

In the case Connick v. Thompson, which considers whether district attorneys can be held liable for failing to properly train prosecutors, attorney Stuart K. Duncan noted that city officials have a duty to train police officers on when not to use deadly force.

“These are people who haven’t gone to law school, right?” Scalia asked. “And do not know that you cannot apply deadly force in most circumstances? … If you were giving guns to lawyers, it might have been different.”

As the audience laughed, Duncan said: “It could be, Your Honor.”

“Depending on the law school they went to or what?” Scalia said to more laughs.

Here’s the laugh count after the first week of oral arguments:

Justice Antonin Scalia: 5

Chief Justice John G. Roberts, Jr.: 1

Justice Ruth Bader Ginsburg: 1

Justice Stephen Breyer: 1

Justice Samuel Alito, Jr.: 1

Justice Anthony Kennedy: 0

Justice Clarence Thomas: 0 (Last oral argument utterance: Feb. 22, 2006)

Justice Sonia Sotomayor: 0

Justice Elena Kagan: 0

Scalia: Sex discrimination not unconstitutional (access required)

There is no constitutional right not to be discriminated against on the basis of gender or sexual orientation, Justice Antonin Scalia said Friday.

The Supreme Court’s most senior associate justice told an audience at the UC Hastings College of the Law in San Francisco that outlawing such discrimination is up to lawmakers, not the Constitution.

“If the current society wants to outlaw discrimination by sex, you have legislatures,” Scalia said, according to The San Francisco Chronicle.

Although the Court has used Fourteenth Amendment as a basis for protecting against sex discrimination, Scalia said he does not believe that interpretation was intended by the amendment’s drafters.

“Nobody thought it was directed against sex discrimination,” Scalia said, adding that while he doesn’t believe such discrimination should happen, the constitutional bar interpreted by courts is “a modern invention.”

Scalia also said that other activity, such as the burning of the Quran, is protected by the Constitution – a sentiment echoed last week by fellow high court jurist Justice Stephen Breyer.

“It may be a very bad idea, but a lot of stupid stuff is perfectly constitutional,” Scalia said, according to SF Appeal.

Breyer: Justices disagree, but don’t hold grudges (access required)

Justice Stephen Breyer’s media blitz in promotion of his new book took him to CNN’s “Larry King Live” last night, were he talked about everything from his relationship with the other justices to his dismay at the fact that few Americans can name three Supreme Court justices, yet most can name all Three Stooges.

King asked Breyer, whose views often differ sharply from those of benchmates like Justice Antonin Scalia – with whom Breyer often spars during oral arguments – if jurists ever carry grudges outside the courthouse.

“No. Because you make an effort,” said Breyer, who is promoting his book “Making Our Democracy Work: A Judge’s View.”

Breyer said the justices don’t take their disagreements personally because they “understand that the job of the Court is to make decisions” and that “harmful personal relationships will hurt the Court.”

On the subject of the president’s State of the Union Address, although several of his colleagues – including Chief Justice John G. Roberts, Jr., Scalia and Justice Clarence Thomas – have expressed unease about being present in such a politicized atmosphere, Breyer said he thinks it’s important for him to attend.

“I think it is important for people to see – that is [all three branches of] the government,” Breyer said. “I will go.”

He demurred when asked by King whether it was appropriate for Justice Samuel Alito to visibly show his disagreement with the President Obama’s remarks about the Court’s ruling in a case dealing with campaign finance law earlier this year.

“What people say or don’t say when they are in that room or out of that room is their affair,” Breyer said.

King asked Breyer how he felt about having three women on the nation’s highest court.

“How do I feel? Fine,” Breyer said.”Does it change things? Yes. How? Probably for the better.”

When asked what the most surprising thing about being a Supreme Court justice was, Breyer responded: “It’s more work than I thought!”

Scalia on law professors and being an honorary ‘cheesehead’ (access required)

When Justice Antonin Scalia spoke yesterday at Marquette University Law School in Milwaukee, he had a message for professors: teach more.

Scalia urged the instructors to resist the urge law professors often feel to place getting published in scholarly journals above classroom instruction.

“The reality is that the part of your academic career that will have the most lasting impact and that will be remembered after you are long gone is those hours you spent producing a living intellectual legacy in the classroom,” Scalia said, according to the Milwaukee Journal Sentinel. “I hope Marquette will always be a teaching law school.”

Scalia, who clerked at a Milwaukee law firm while in law school, also joked that Wisconsin Supreme Court Chief Justice Shirley Abrahamson had named him an “honorary cheesehead.”

Monday status conference: Conservative estimate

“If the Roberts court continues on the course suggested by its first five years, it is likely to allow a greater role for religion in public life, to permit more participation by unions and corporations in elections and to elaborate further on the scope of the Second Amendment’s right to bear arms. Abortion rights are likely to be curtailed, as are affirmative action and protections for people accused of crimes.”

That prediction came in a New York Times analysis by Adam Liptak of Chief Justice John G. Roberts, Jr.’s Supreme Court, which, Liptak writes, has become “the most conservative one in living memory.”

And that is something that will not change for quite some time, given the Court’s makeup. The impact on the Court of President Barack Obama’s two picks so far, Justice Sonia Sotomayor and likely-to-be-confirmed nominee Elena Kagan, is slight, given the fact that they were named to replace justices with similar ideological leanings.

In fact, the article states, the big shift occurred five years ago with one key appointment by President George W. Bush: Justice Samuel Alito, Jr. taking the seat of retired Justice Sandra Day O’Connor.

In other Beltway-related legal news to kick off your week:

Rangel’s failed settlement: The announcement that New York Rep. Charlie Rangel would face a congressional trial over charges of ethics violations came after settlement negotiations between Rangel and the House ethics committee broke down. (New York Times)

Friend in dissent: Right up until the end of his tenure, Justice John Paul Stevens did what he had for decades – sparred with Justice Antonin Scalia in written opinions. (Washington Post)

Right of first recusal: Kagan will have to sit out a dozen or more cases news term, due to her involvement in the cases as solicitor general. But will she have to recuse herself when the healthcare law lands before the Court? (NYT)

Nursing guidance: The U.S. Department of Labor has issued a fact sheet outlining employers’ obligation to give adequate break time to nursing mothers under the health care reform law that went into effect earlier this year. (Lawyers USA)

Scalia comes to Sotomayor’s linguistic aid

Justice Sonia Sotomayor has been on the Supreme Court bench for less than a year, but she already knows she can ask for help from her follow justices when she needs it.

While announcing the decision in the civil procedure case Krupski v. Costa Crociere yesterday morning, Sotomayor had trouble with the pronunciation of the defendant company’s Italian name.

“I’m going to ask my colleague Justice Scalia to say it right,” Sotomayor said, according to the Associated Press.

Scalia, whose father was a professor of Romance languages at Brooklyn College, was happy to help.

“Kroo-chee-ER-ay,” said the Italian American jurist.

Sotomayor, whose family hails from Puerto Rico, was grateful for the assist.

“Kroo-chee-ER-ay,” the Bronx-born Sotomayor repeated, adding, “I want to put the Spanish accent on it.”

And the Funniest Justice is…

The Supreme Court oral argument season for October Term 2009 has ended. That means it’s time to name this term’s Funniest Justice – the jurist who earned the most laughs this term.

And, as those of you who have been following the tally all year know, there is no need for a drum roll. This one was a blowout:

Earning 77 laughs during the oral argument season – nearly half the total number of laughs earned by the justices – Justice Antonin Scalia is the winner and three-peat champion. (It may be more than a three-peat, but DC Dicta has only been around for three years to count).

Scalia demonstrated why he dominated this contest during yesterday’s oral arguments in Doe v. Reed, a case considering whether the release of petition signers’ identities is constitutional.

“What about just wanting to know their names so you can criticize them?” Scalia asked petitioners’ attorney James Bopp, earning the first of his four laughs that day. “Is that such a bad thing for democracy?”

“Well, what is bad is not the criticism, it’s the government requiring you to disclose your identity and belief,” Bopp replied.

“But part of the reason is so you can be out there and be responsible for the positions you have taken (so) people can criticize you for the position you have taken,” Scalia said.

“Then why don’t they require both sides if that was the purpose?” Bopp asked.

“What do you mean, ‘both sides’? The other side hasn’t signed anything,” Scalia said, drawing more laughter. “When they sign something, they will be out there for public criticism as well.”

“Okay,” Bopp said. “But this is a one-way street.”

“Oh, this is (so) touchy-feely,” Scalia said to more laughs. “Oh, so sensitive.”

Note that Justice Clarence Thomas has reached a milestone as well – he has completed his fourth full Supreme Court term without offering a single question or comment during oral arguments.

Here is the final tally:

Justice Antonin Scalia: 77

Justice Stephen Breyer: 44

Chief Justice John G. Roberts, Jr.: 26

Justice Anthony Kennedy: 8

Justice Samuel Alito: 6

Justice John Paul Stevens: 3

Justice Ruth Bader Ginsburg: 1

Justice Sonia Sotomayor: 1

Justice Clarence Thomas: 0 (Thomas has maintained oral argument silence since Feb. 22, 2006)

Profs offer cure for fame-drunk Supreme Court justices

Are the justices of the Supreme Court drunk on fame? Have they become “celebrities in robes?” Do they need a cure for their “unnecessary and unhealthy flamboyance?”

That is what two George Mason University School of Law professors believe. And they have a cure, they say.

In a paper set to be published in the George Washington Law Review, Profs. Craig S. Lerner and Nelson Lund lament the fact that the justices write self-indulgent opinions and dissents while on the job, then hobnob with celebrities like J.Lo and mambo in public (you listening, Justice Sotomayor?) or serve as Grand Marshall of Manhattan’s Columbus Day Parade and then light a cigarette for Sarah Jessica Parker (hear that, Justice Scalia?).

To put a stop to all this attention seeking, the professors propose, among other things, that the Court issue unsigned opinions.

“Truly unpretentious judicial servants should have no need to put their personal stamp on the law, and the practice of doing so has contributed to unnecessary and unhealthy flamboyance in the Court’s work,” the professors write. That would mean no more crime novel-themed opinions. (Sorry Mr. Chief Justice!)

Other suggestions the professors have for keeping a check on the bigness of the justices’ britches include barring law clerks from drafting opinions and requiring justices to ride the circuits on the lower courts.

HT: ABA Journal

Will Kagan be the next Funniest Justice?

Solicitor General Elena Kagan, considered to be the frontrunner on President Obama’s list to replace retiring Justice John Paul Stevens, may have only argued her first Supreme Court case last year.

But since that time, she has wasted no opportunity to show her funny side – which makes DC Dicta wonder: Could she be the next Funniest Justice?

Those of you keeping watch of our ongoing tally know that the title currently rests comfortably in the hands of Justice Antonin Scalia, who has handily earned the most laughs of any justices for the past two terms, and is set to three-peat when oral arguments for this term wrap up at the end of the month.

But in her appearances before the Court, Kagan has shown that she too has a funny bone.

After walking up the podium to argue the case Holder v. Humanitarian Law Project in February, Kagan – whose stature is much shorter than other attorneys who regularly argue before the justices – began cranking the lever to lower the lectern.

“With your permission, Mr. Chief Justice. This may take some time,” Kagan said, drawing laughter from the audience as well as the justices.

During arguments last month in the case Robertson v. U.S., Justice Scalia asked Kagan if the Court whether the prosecutor in the case was acting as an agent of the court or the city.

“Who would you like the person be an agent of, Justice Scalia?” Kagan asked.

As the crowd laughed, Scalia answered: “Well, I’m not making the argument.”

“Usually we have questions the other way,” Chief Justice John G. Roberts, Jr. said.

“I apologize,” Kagan answered, with a smile.

In January, during oral arguments in U.S. v. Comstock, Kagan started to refer to Scalia as “Chief Justice.”

“Excuse me, Justice Scalia,” Kagan said, “I didn’t mean to promote you quite so quickly.”

As the crow laughed, Roberts said: “Thanks for thinking it was a promotion!”

SCOTUS: Lawyers have constitutional duty not to give bad advice

Lawyers have a constitutional obligation to inform their clients that a criminal plea could result in deportation, the U.S. Supreme Court held today.

In his opinion in the case Padilla v. Kentucky, Justice John Paul Stevens held that an attorney who told his client not to worry about the consequences of a guilty plea – and  whose client was later subject to a deportation order because of his conviction – gave constitutionally deficient representation.

“It is our responsibility under the Constitution to ensure that no criminal defendant – whether a citizen or not – is left to the ‘mercies of incompetent counsel,'” Stevens wrote. “To satisfy this responsibility, we now hold that counsel must inform her client whether his plea carries a risk of deportation.”

The 7-2 ruling was assailed in a dissent by Justice Antonin Scalia, who accused the majority of ignoring the text of the Sixth Amendment in order to achieve the result it wanted.

“Constitution [is] not an all-purpose tool for judicial construction of a perfect world; and when we ignore the text in order to make it that, we often find ourselves swinging a sledge where a tack hammer is needed,” Scalia wrote.

In the other opinion handed down this morning, Shady Grove Orthopedic Associates v. Allstate Insurance, the Court held that a New York state law barring class actions for “penalty” fees cannot prevent a diversity jurisdiction class action claim because the state rule conflicts with Federal Rule of Civil Procedure 23. The plurality opinion, authored by Justice Antonin Scalia, found that the conflict between state and federal rules must be resolved in favor of the federal rule, which allows such claims.

More on these cases today and in the days to come on Lawyers USA online.