“Oh, Come On,” Says Chief Justice

I can assure you, this is not something you want to hear from any judge, probably ever, let alone just after you have said words in court. But according to the New York Times, that’s what the Solicitor General heard from the Chief Justice of the U.S. Supreme Court on Wednesday.

I haven’t read the transcript, but the article quotes similar statements by five other justices. That doesn’t mean the Administration will lose the case, necessarily, but there may be at least six votes in favor of making fun of it.

The case is Maslenjak v. United States, and involves the Administration’s argument that it can revoke the citizenship of a naturalized U.S. citizen if he or she made even the most trivial misstatements in the naturalization proceedings. No matter how minor, the Administration says, or how long ago, if the statement is false then it can revoke that person’s citizenship and deport him or her if it wants to. Taking extreme positions like this is asking for trouble, of course, because any competent lawyer can come up with lots of examples that make you look dumb. And the justices are pretty competent lawyers.

Not least the Chief Justice, who had a question about speeding.

“Some time ago, outside the statute of limitations, I drove 60 miles an hour in a 55-mile-an-hour zone,” the chief justice said, adding that he had not been caught.

The form that people seeking American citizenship must complete, he added, asks whether the applicant had ever committed a criminal offense, however minor, even if there was no arrest.

“If I answer that question no, 20 years after I was naturalized as a citizen, you can knock on my door and say, ‘Guess what, you’re not an American citizen after all’?” Chief Justice Roberts asked.

Robert A. Parker, a Justice Department lawyer, said the offense had to be disclosed. Chief Justice Roberts seemed shocked. “Oh, come on,” he said.

Justice Kennedy had a similar reaction, and apparently such a strong one that he completely forgot that the Chief Justice of the United States had just confessed to a crime. “Your argument is demeaning the priceless value of citizenship,” he said, and it didn’t get better from there.

Justice Sotomayor wanted to know whether a person could be stripped of citizenship and deported for failing to disclose an embarrassing childhood nickname, while Justice Kagan said she was a “little bit horrified to know that every time I lie about my weight it [might have] those kinds of consequences.” Parker was adamant: no matter how trivial, out you go. Or out you could go; he seems to have tried to assure the skeptical judges that the government would exercise its discretion appropriately in such cases, and I assume appropriately raucous laughter then broke out in the courtroom.

Oddly enough, it is possible to get treated like this at argument and still win the case, and that might ultimately be the case here. According to SCOTUSblog, the plaintiff said at the time she immigrated that she and her family left Serbia because her husband wanted to avoid being drafted into the Bosnian Serb militia. But it turned out that not only had he served, he was in a unit implicated in war crimes. Some of the same justices who made fun of the Solicitor General’s extreme position on the standard asked Maslenjak’s attorney why that lie wasn’t “obviously material.” The question on appeal, though, is whether the lower court applied the right standard when it accepted the government’s position that any lie is material. Given the open mockery of that position on Wednesday, it sounds like the government will lose on appeal, but it could still win at trial.

On a related note, I gave a presentation in Kansas City yesterday on legal ethics and other much more ridiculous things, and the presentation was held in the ceremonial courtroom of the District Court for the District of Kansas. So several judges laughed at me in court this week, too, but I was trying to get them to do that.