Mike Sacks, currently a third-year law student at Georgetown University in Washington, D.C., has embarked on a quest to be the first one in line to see at least the major cases be argued at the Supreme Court this term. (I can vouch for the fact that third-years tend to come up with projects like this that do not involve going to class. I tended to go to the big museums, just a few blocks from the law school, although to be honest my usual class-alternative project was to pull the covers over my head.) He is blogging about it at his new blog, First One @ One First, a great name derived from the fact that the Court is located at One First Street NE, which is just a short walk from the law school.
For the really big cases, you apparently must be willing to camp out the night before if you want to get one of the 50 general-admission tickets. Mike managed to be first for Citizens United v. FEC, a major campaign-finance case that had additional star power because it was the first case argued before a Court that included Justice Sotomayor. He camped out at 11 p.m., although as it turned out nobody else showed until 3:45 the next morning. Mike says that for the really big show last year, District of Columbia v. Heller, people started lining up the afternoon before. Although maybe those are the scalpers.
Link: First One @ One First
There are more good tidbits in the series of C-SPAN interviews of Supreme Court justices, the series in which Justice Scalia suggested that smart lawyers should find something more productive to do. In his interview, Justice John Paul Stevens was asked whether anyone ever recognizes him outside the courtroom (hopefully people recognize him inside the courtroom). Answer: never.
Well, almost never. Stevens did recall one occasion in Florida in which somebody recognized him in, of all places, a video store. Apparently, the owner of the store had just been admitted to the bar, and so was somewhat acquainted with legal issues.
This may have happened fairly recently, considering that someone with a license to practice law was instead running a video store.
New York Times reporter Linda Greenhouse has noted that because TV cameras are not allowed in the Court, the justices are able to "retain a degree of privacy almost unthinkable for such powerful people. Few people recognize them," she wrote:
I once saw a tourist hand a camera to Justice Byron R. White outside the Court's public cafeteria, and, having no idea that the tall gray-haired man was one of the nine Justices, ask him to take his family's picture. White, who retired in 1993, wordlessly complied.
I can only recall asking other tourists to handle picture-taking duties, and somehow I doubt Justice White was hanging around the cafeteria in big shorts and a Hawaiian shirt. But it is nice to think that he would have been able to do that, if he wanted to.
Last week, the Wall Street Journal reported on an anecdote from a set of interviews that all the Supreme Court justices recently granted to C-SPAN. This week is "Supreme Court Week" on C-SPAN, and that should attract more viewers than the channel's next biggest draw, the long-running reality show "Guy Making a Speech to an Empty Room." In particular, you might want to watch for excerpts from an interview with Justice Scalia.
The WSJ reported that, when asked about his opinion of the "quality of counsel" who appear before the Court, Scalia said he thought it was actually quite good. Unlike some other justices (such as former Chief Justice Burger, who Scalia said "used to complain about the low quality of counsel"), Scalia said that in his opinion those appearing before the Court were often "brilliant" and represented some of "our very best minds."
And he thinks that's a tragedy.
I used to have just the opposite reaction [to Burger's]. I used to be disappointed that so many of the best minds in the country were being devoted to this enterprise.
I mean there’d be a, you know, a defense -- or public defender from Podunk, you know, and this woman is really brilliant, you know. Why isn’t she out inventing the automobile or, you know, doing something productive for this society?
I mean lawyers, after all, don’t produce anything. They enable other people to produce and to go on with their lives efficiently and in an atmosphere of freedom. That’s important, but it doesn’t put food on the table and there have to be other people who are doing that. And I worry that we are devoting too many of our very best minds to this enterprise.
Well, that's an odd statement, especially coming from one of the best minds devoted to this enterprise. If I understand correctly, Justice Scalia is saying, "It is depressing to see so many smart lawyers here in the Supreme Court, because each of them is such a tragic loss for the engineering profession." I don't see how that follows. Trust me, there are lots of smart lawyers who would consider it a victory to successfully set the clock on their VCRs - and who still have VCRs - so it isn't like every smart person could have become either a lawyer or an engineer or whatever. And would it really cheer him up to see more stupid lawyers, because that would mean engineers as a group must be getting smarter? Somehow, I doubt it.
Also, could someone tell Justice Scalia that the automobile has already been invented? He can stop worrying about that issue, at least.
Link: WSJ Law Blog
On whether or not to look at the camera, anyway:
Actually, that does not appear to be the final official portrait. Good thing, because this almost seems like one of those band photos where they all insist on broodingly staring off in different directions.
There are, for whatever reason, at least three shots of the new Court floating around the Internet. The actual portrait, I think, is this shot that appears today on the New York Times blog "The Caucus":
This one is better: Sotomayor looks happier, Alito less terrified, Kennedy and Stevens stopped chatting, and, in a moment of rare agreement, Roberts and Stevens both decided to look at the camera. Justice Breyer hasn't moved at all, and for some reason I have the feeling that he assumed that position hours before anyone else arrived.
Justice Ginsburg is standing in both pictures, despite having just been released from the hospital. I assume there is some protocol-related reason why none of the gentlemen in the front row has offered her a seat.
In my experience, people did sometimes stick things in my underwear.
Or, not my underwear . . . whatever. Whatever. I was the one who did it? I don't know. I mean I don't think it's beyond human experience.
-- Justice Breyer, during yesterday's argument in Safford Unified School District v. Redding.
The case involves a search of a 13-year-old girl by school officials who strip-searched her on suspicion of possessing an ibuprofen pill (that's Advil, folks) in violation of a strict no-drugs policy. Justice Breyer was apparently trying to make the point that someone afraid of being caught might hide contraband just about anywhere, but used the wrong pronoun ("my" instead of "their," although I'm not sure the right pronoun makes it a lot better).
Justice Thomas is probably feeling pretty smug right now about his strict no-comments-from-the-bench policy.
Speaking to a group of students on April 13 at a dinner sponsored by the Bill of Rights Institute, Supreme Court Justice Clarence Thomas admitted that he is perpetually enthralled by the Miracle of the Dishwashing Machine:
I have to admit . . . that I’m one of those people that still thinks the dishwasher is a miracle. What a device! And I have to admit that because I think that way . . . . I like to load it. I like to look in and see how that dishes were magically cleaned.
He got on this subject because he was talking about how, in his view, people should remember that things like the magic dish-box, the horseless carriage, and even Mr. Bell's Long-Distance-Shouting Device are luxuries, not entitlements. "It seems that many have come to think that each of us is owed prosperity and a certain standard of living," he said. "They're owed air-conditioning, cars, telephones, televisions." Not so, he opined. (He did not speak, like everybody's grandpa, of how back in his day he had to walk 20 miles to school through a waist-deep swamp or whatever, but I would guess that he probably did have to wash the dishes by hand.)
These aren't rights, Thomas told the kids. In fact, he made pretty clear that he thinks this whole "rights" business is way overdone these days. "Today there is much focus on our rights," he said, a little disapprovingly. "Indeed, I think there is a proliferation of rights. I am often surprised by the virtual nobility that seems to be accorded those with grievances. Shouldn't there at least be equal time for our Bill of Obligations and our Bill of Responsibilities?" Which Constitution is this again? This demoting of the Bill of Rights to being just part of a trinity might have puzzled students a little, especially given that Thomas was speaking at the "Bill of Rights Institute."
Rather than dwell on that too much, though, I prefer to linger on my mental picture of Justice Thomas relaxing at home in his slippers, loading and unloading the dishwasher, and yanking the door open every now and then to try to catch that magical moment when the dishes actually get clean.
Link: New York Times
Last month, Jay Wexler spoke to noted language expert Steven Pinker and asked him where Justice Scalia might have come up with the term "gollywaddles," which Scalia used during oral argument this term in FCC v. Fox Television Stations. Wexler is a former Ginsburg clerk and prolific writer who has written a book (due out next summer) about the church-and-state dilemma in America. (He's also a very funny writer whose essays have appeared in McSweeney's and the Green Bag, among other places.) Pinker is a Harvard psychology professor who has written several books of his own, and who conveniently lives in Wexler's building.
Pinker's conclusion: "I am pretty sure that Scalia made up 'golly waddles' on the spot." There's more at the link below, but that's the gist of it.
There might be an issue here as to whether "gollywaddles" is one word or two. The official transcript reports it as "golly waddles," but that could be a transcription error. Scalia could have intended it as one word - possibly drawing it out in the way Gomer Pyle might have said it? - and the reporter (never having heard the term before, of course) could have transcribed it as two. I doubt that would affect Professor Pinker's opinion, but we should get it right for posterity.
It occurred to me that the official recording of the oral argument in FCC might answer this question, in addition to the likely substantial entertainment value of, for example, listening to Justice Stevens spell out the word "dung." Unfortunately, however, it appears that unlike the transcripts, recordings of Supreme Court oral arguments are not immediately available. The world will have to hold its breath until the National Archives make this priceless information available sometime during the next Court term.
You can read the rest of Pinker's opinion, and more about Jay Wexler's upcoming book, "Holy Hullabaloos," at the link below.
Link: Holy Hullabaloos
Though no one ever actually dropped it, the "F-Bomb" was the main topic of conversation during Supreme Court arguments Tuesday in FCC v. Fox Television Stations.
The case is on appeal from a Second Circuit decision that the FCC acted arbitrarily when it cited networks that had broadcast "fleeting" expletives, for example when Bono decided to call his Golden Globe "really f*cking brilliant." In the past, the FCC had not punished single, unscripted uses of such terms.
Much of the discussion during oral argument had to do with administrative law, and makes it sound like the Court may send the case back on those grounds, allowing it to avoid the First Amendment questions. But at argument the constitutional questions did come up, of course, which provided a reason for everyone to debate the use of expletives.
Defending the new policy, the Solicitor General said the agency had good reasons for deciding to classify "fleeting expletives" as indecent, at least depending on context. As an example, he said that there was "an element of pandering" in the Paris Hilton-Nicole Richey exchange in 2003 in which both the F-Bomb and the somewhat less powerful S-Bomb were dropped. "Pandering" appeared to mean that they had set out to be provocative. Justice Stevens asked whether it was different if the F-Bomb was used with no reference to its sexual connotations, but the SG argued that the word "inevitably conjures up a core sexual image." "Which is, indeed, why it's used," chimed in Justice Scalia helpfully.
The SG painted a terrifying picture of how the world might look if the Court ruled in favor of the networks, saying they would be free to broadcast expletives 24 hours a day, "going from the extreme example of Big Bird dropping the F-Bomb on Sesame Street, to the example of using that word during Jeopardy . . . ." I'll take Stupid F*&#ing Arguments for $1000, Alex. Those are strange examples for a number of reasons, not the least of which is that if anybody on Sesame Street would do that, obviously it would obviously be Oscar the Grouch, not Big Bird. I guess it's been a while since the Solicitor General saw an episode of Sesame Street. Or maybe it's changed quite a bit since I saw one, but I doubt it's changed that much since last week.
There was an exchange as to whether it was okay to be indecent if the indecency was sufficiently funny. "Maybe I shouldn't ask this," began Justice Stevens, which is the kind of statement that makes everybody lean forward to hear what it is somebody shouldn't be saying:
but is [it] ever appropriate for the Commission to take into consideration at all the question whether the particular remark was really hilarious, very, very funny?
Some of these things you can't help but laugh at. Is that -- is that a proper consideration, do you think?
[Solicitor General]: Yes, insofar as the Commission takes into account whether it's shocking, titillating, pandering --
JUSTICE SCALIA: Oh, it's funny. I mean, bawdy jokes are okay if they are really good.
The Legal Times described Scalia's tone as "sarcastic," but his meaning still seems a little unclear. The answer to Stevens's question, of course, is "yes, it matters."
Fox was represented by Carter Phillips of Sidley Austin. Phillips had said prior to argument that he would be using the actual expletives before the Court "unless otherwise instructed," as did the attorney in the famous "F*ck the Draft" case years ago. As it turned out, though, everyone chickened out and used euphemisms instead. The best exchange during Phillips's time was the argument over exactly why the F-Word is considered shocking:
MR. PHILLIPS: Well, all that [prior case law] says is that you cannot immediately jump -- you -- it wouldn't even remotely strike you that the reason the language is being used is for its particular sexual meaning.
CHIEF JUSTICE ROBERTS: Then why -- why do you think the F-Word has shocking value or emphasis or force?
MR. PHILLIPS: The same reason the S-Word does; it's because in some circles it is inappropriate.
CHIEF JUSTICE ROBERTS: Because it is associated with sexual or excretory activity. That's what gives it its -- its force.
MR. PHILLIPS: I mean, I -- to say that, I suppose you can say it, but I don't understand on what
basis. There is no empirical support for that. There's no --
JUSTICE SCALIA: Of course there is.
MR. PHILLIPS: -- anything in the record that remotely suggests that.
JUSTICE SCALIA: Don't use golly waddles instead of the F-Word.
Scalia seems to have coined the term "golly waddles." Whether it will help or hurt his record as Funniest Justice is hard to say.
The Supreme Court did take up the "emergency" motions for reconsideration in the Carcieri case at its Friday conference today, and denied them. That means it will not decide whether Joe Larisa or Ted Olson gets to argue for the petitioners, and that may mean there will be blood on the podium on November 3 if petitioners still have not been able to work it out.
At this point, whoever is able to broker a deal here could put his or her name in for the Nobel Peace Prize.
May I suggest a quick match of rock-paper-scissors? At least the ground rules are fairly well established, and there is an international regulatory body that could supervise the event.
Link: SCOTUSblog (with link to order)