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The Funniest Justice, week 9: Sotomayor sets it up for Scalia

During oral arguments Tuesday in Holder v. Humanitarian Law Project, a case that challenges a federal law making it unlawful to provide “material support” to terrorist groups:

“Under the definition of this statute, teaching these members to play the harmonica would be unlawful,” Justice Sonia Sotomayor said to Solicitor General Elena Kagan.

“Well, maybe playing a harmonica is a specialized activity,” Kagan said. “I think the first thing I would say is there are not a whole lot of people going around trying to teach Al-Qaeda how to play harmonicas.”

“Well, Mohamed Atta and his harmonica quartet might tour the country and make a lot of money. Right?” deadpanned Justice Antonin Scalia. And laughter filled the courtroom.

Scalia is making this term’s Funniest Justice contest a runaway race at this point, earning five additional laughs this week and bringing his total chuckle count to 50.

Justice Stephen Breyer earned two laughs, and Chief Justice John G. Roberts, Jr. and Justice Anthony Kennedy each added one laugh to the totals.

Here are the standings as of this week:

Justice Antonin Scalia: 50

Justice Stephen Breyer: 28

Chief Justice John G. Roberts, Jr.: 18

Justice Anthony Kennedy: 7

Justice Samuel Alito: 3

Justice John Paul Stevens: 2

Justice Clarence Thomas: 0 (The oral argument silence that began after Feb. 22, 2006 continues)

Justice Ruth Bader Ginsburg: 0

Justice Sonia Sotomayor: 0 (Despite the assist, the laugh goes to Scalia)

Scalia throws water on secession idea

Say you are a screenwriter, and you are writing a story about the attempt by a state to secede and become a part of Canada, leading to a court battle that goes all the way to the U. S. Supreme Court. Who might you consult to find out the feasibility of such a storyline?

Well, back in 2006, one screenwriter sought the ultimate legal technical advisors: the justices of the U.S. Supreme Court. He wrote a letter to each sitting justice, as well as to retired Justice Sandra Day O’Connor, asking their thoughts on the story.

The screenwriter’s brother – who happens to be New York Personal Injury Law Blog author Eric Turkewitz – thought the request would end up in the wastebasket of the jurists. But surprisingly, one justice responded.

“I am afraid I cannot be of much help with your problem, principally because I cannot imagine that such a question could ever reach the Supreme Court,” replied Justice Antonin Scalia in a letter written on Supreme Court letterhead. “To begin with, the answer is clear. If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede. (Hence, in the Pledge of Allegiance, ‘one Nation, indivisible.’)”

DC Dicta wonders if Scalia left out the “under God” part to avoid a whole different constitutional discussion, but we digress…

“Secondly,” Scalia continued, “I find it difficult to envision who the parties to this lawsuit might be. Is the State suing the United States for a declaratory judgment? But the United States cannot be sued without its consent, and it has not consented to this sort of suit.

“I am sure that poetic license can overcome all that — but you do not need legal advice for that. Good luck with your screenplay,” Scalia concluded.

Turkewitz noted that the letter is evidence that at least one Supreme Court justice firmly believes any notion among members of the Tea Party movement that secession is an option is simply wishful thinking.

SCOTUS justices get their “word of the day”

We know that Justice Antonin Scalia won’t tolerate made-up words during oral arguments. But when a genuine 50-cent vocabulary word comes up, Scalia really enjoys it.

Yesterday during oral arguments in the case Briscoe v. Virginia, Richard D. Friedman, a professor at University of Michigan Law School, dropped the phrase “entirely orthogonal” into his argument.

“I’m sorry – entirely what?” asked Chief Justice John G. Roberts, Jr.

“Orthogonal,” Friedman repeated before rattling off synonyms. “Right Angle. Unrelated. Irrelevant.”

Scalia jumped in. “What was that adjective? I liked that,” Scalia said.

“Orthogonal,” Friedman said.

“Orthogonal,” Roberts repeated.

“Orthogonal, ooh!” Scalia said with delight, as the other justices and the audience laughed.

“I knew this case presented us a problem,” said Justice Antony Kennedy, spurring more laughter.

“I think we should use that in the opinion!” Scalia said. And then, as if to avoid tipping his hand in the case, he added: “Or in the dissent.”

More on the oral arguments in Briscoe here on Lawyers USA.

Scalia on singing, playing music and being the Funniest Justice

Long before Justice Antonin Scalia was known as a voice of strict constructionism on the Supreme Court, he was known for his tenor singing voice.

In an interview with New York Classical radio station WQXR host Gilbert Kaplan, Scalia reveals a number of little-known musical facts about himself: he sang in the glee club in high school, he’s a trained pianist and also played the French horn in a marching band, and he has lent his tenor voice to choral groups in several cities, including here in Washington.

“[W]e sang at the National Gallery, the National Cathedral, various other places,” Scalia said of the chorus, which he joined during his days as a Court of Appeals judge. “I miss it very much.”

Kaplan, noting as DC Dicta has that Scalia is the funniest justice according to the number of laughs he gets from the audience during oral arguments, asked Scalia about the role humor plays in his jurisprudence.

“Oh, I don’t – you know – I guess one purpose is to just lighten things up,” Scalia said. “Life is dull enough. There’s no reason why legal argument can not be civilized with a little bit of wit and humor now and then. It’s hard for that to come from the counsel who are arguing the case. It’s pretty risky to try to be humorous when you’re counsel but the judges can now and then make wry observations upon the passing scene. That’s one purpose. But another purpose is there is nothing that can so deflate an overblown argument as a humorous interjection that shows how absurd it is.”

He also talked his experience on stage – along with Justice Ruth Bader Ginsburg – for the entire performance of the Washington National Opera’s Ariadne auf Naxos back in October. Scalia and Ginsburg had non-speaking parts as diner party guests, and at one point a singer perched herself on Scalia’s lap.

“[A]t one point a perky little participant in the opera … she comes and sits upon my lap,” Scalia recounted. “It’s not in the script but it was written in for that night. And I didn’t consider it my, you know, most notable theatrical performance. It didn’t take much talent. But I thoroughly enjoyed it.”

More from the interview can be found here.

The year in DC Dicta

We’ve reached the end of 2009 – and what a year it’s been for legal news in Washington!  We did a quick scan of DC Dicta’s web hits find some of the most buzz-worthy news topics of the year, according to you. From celebrity legal battles to the confirmation of a new Supreme Court justice, here’s a snapshot of what you read on DC Dicta this year:

Presidential oath redo. In January, the eyes of the world were on Washington for the inauguration of President Barack Obama. Not the best time to make a mistake, and unfortunately for Chief Justice John G. Roberts, Jr., his slip of the tongue while administering the oath not only caused some chuckles, but also spurred conspiracy theorists to suggest the oath didn’t take. So Roberts and Obama had a redo at the White House.

Souter to Sotomayor. The retirement of Justice David Souter kicked off one of the busiest summers DC Dicta has ever had. After Souter officially announced his plans to step down back in May, speculation began to run rampant over who President Obama would select as his first high court pick. The list included Govs. Jennifer Granholm and Deval Patrick, and Judges Merrick Garland and Diane Wood. Obama ultimately selected 2nd Circuit Judge Sonia Sotomayor.

Liveblogging the confirmation. Though at first Sotomayor’s record seemed to ensure a foolproof confirmation process, controversy involving a previous speech she made put the phrase “wise Latina woman” at the center of her confirmation hearings before the Senate – hearings that gave DC Dicta a chance to do it’s first ever liveblog.

Anna’s posthumous legal battles. The original parties in the legal battle between Anna Nicole Smith and her former stepson died before the year began, yet the courtroom battle over the estate of Smith’s late billionaire oil baron husband continued on. Smith’s lawyer and alleged paramour Howard K. Stern tried in vain to get the U.S. Supreme Court to lift a stay of the award, saying Marshall’s kin was pilfering the money. Stern himself would later face his own legal troubles involving claims he illegally procured drugs for the former pinup.

Scalia’s a funny guy. Who says the Supreme Court is a stodgy place. Justices of the high court are known for making the crowd laugh hundreds of times a term, and none is funnier than Justice Antonin Scalia.

The Funniest Justice, week 6: Breyer leaves ’em laughing

“I thought there was a principle that a citizen is supposed to be able to understand the criminal law that was around even before Justice Scalia,” said Justice Stephen Breyer during oral arguments Tuesday.

That quip, made lightly at the expense of his colleague, was one of five chuckle-drawing comments Breyer made this week, allowing him to pass Chief Justice John G. Roberts, Jr. and take second place in the running tally of the Funniest Justice on the Supreme Court this term.

Justice Antonin Scalia also got five laughs this week, protecting his healthy lead.

Here are the laugh standings:

Justice Antonin Scalia: 28

Justice Stephen Breyer: 14

Chief Justice John G. Roberts, Jr.: 13

Justice Anthony Kennedy: 3

Justice John Paul Stevens: 2

Justice Samuel Alito: 2

Justice Clarence Thomas: 0 (Thomas has remained silent during oral arguments since Feb. 22, 2006, although he often laughs heartily at other justices’ jokes)

Justice Ruth Bader Ginsburg: 0

Justice Sonia Sotomayor: 0

The Funniest Justice, week 5: Sam and Nino’s spring break party

“Suppose that a city decided [it] wanted to attract more students who were going to the beach in Florida for spring break, and so therefore it decided it was going to create a huge beach in front of privately owned homes,” pondered Supreme Court Justice Samuel Alito yesterday during oral arguments in a takings case about a law expanding beaches to allow public access. “So you could have televised spring break beach parties in front of somebody’s house.”

Justice Antonin Scalia even had a name for such a law.

“It’s the Spring Break Act of 2010,” Scalia said, earning a round of laughter from the audience.

During oral arguments in the five cases before the Supreme Court this week, Scalia cracked wise a total of four times, padding his lead in the Funniest Justice standings. And Alito did more than play the set-up guy – he earned a laugh on his own this week. Chief Justice John G. Roberts, Jr. and Justice Stephen Breyer also displayed their senses of humor. Roberts earned one laugh this week and Breyer earned three, according to Court transcripts.

Here is the laugh count so far this term:

Here are the laugh standings:

Justice Antonin Scalia: 23

Chief Justice John G. Roberts, Jr.: 11

Justice Stephen Breyer: 9

Justice Anthony Kennedy: 3

Justice John Paul Stevens: 2

Justice Samuel Alito: 2

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 passions of Scalia

USA Today‘s Joan Biskupic, author of American Original, a new biography of Justice Antonin Scalia that was released this week, sat down with Tom Goldstein of Akin Gump and SCOTUSblog to talk about the man many find to be the most fascinating and funny justice on the Court.

The full podcast of the chat can be found here on SCOTUSblog, but here are some highlights from their discussion on a topic that has generated a lot of chatter among Court watchers: Scalia’s religion, and it’s effect, if any, on his rulings.

Biskupic talks about Scalia’s firm contention that his judicial views are not at all shaped by his Catholic faith. At the same time, she said, Scalia is passionate about his religion. He is also passionate about Roe v. Wade. But those are two, separate, parallel passions, Biskupic explained.

“That was one of the hardest chapters to write,” she said of the chapter titled Passions of his mind . “So many people view his rulings on abortion and church-and-state issues as being influenced by his Catholicism, even though the justice himself says: ‘Absolutely not. I read text. I am influenced by the original understanding of the constitution. I’m influenced by the text of the law.'”

But, Biskupic explained, “there are two passions here that cannot be denied, and that’s [an] an intense passion about Catholicism, [and] he has an intense passion for Roe v. Wade. And those two things cannot be denied. He says that they are parallel, that they do not intersect. But I basically put them in the same context and let him have his say, and let critics [have] their say.

“And I think what readers should draw from it,” Biskupic continues, “is that he himself believes that he cannot separate his religious life from his intellectual life. And he himself also believes that he comes to abortion independent – in terms of his decisions – independent of those religious views.”

The funniest justice, week 3: The dirty work

“We don’t like to decide these questions, you know, initially. We like to have some lower court do the dirty work, and we can correct them. It’s a lot easier that way.”

That was Justice Antonin Scalia said during oral arguments in NRG Power Marketing, LLC v. Maine Pub. Util. Comm’n Tuesday, drawing one of the six laughs he earned this week. That pads Scalia’s lead so far in the Funniest Justice contest.

It’s worth nothing that Justice Stephen Breyer earned three laughs this week – an impressive number considering he had laryngitis.

Here are the laugh standings:

Justice Antonin Scalia: 19

Chief Justice John G. Roberts, Jr.: 10

Justice Stephen Breyer: 6

Justice Anthony Kennedy: 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