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The Supreme Court is like a ghost town now. The justices, bruised and weary from an end-of-term torrent of paper and vitriol, are scattering, and some court officials and employees are doing the same. Chief Justice William Rehnquist raced, as he usually does, to the judicial conference of the 4th U.S. Circuit Court of Appeals just hours after the final decisions of the Court’s term were handed down on June 28. There, at the Greenbrier resort in West Virginia, he conducted his usual sing-along on the following evening. To many listeners’ relief, he ended the sing-along with “Auld Lang Syne,” not the traditional “Dixie,” which caused so much controversy last year. “I was prepared to walk out if ‘Dixie’ was sung, and I was pleased that it wasn’t,” said Sherrilyn Ifill, assistant professor at the University of Maryland School of Law. The song is linked in the minds of many to the South’s segregationist past. There was suspense until the last moment, however. Ifill noted that the words to “Dixie” were included in the songbook passed out to participants, a photocopied compilation of the chief’s old favorites. With the crisis averted, the mood of the attendees lightened and Rehnquist even told an octogenarian joke later in the conference: A man in his eighties marries a younger woman, and soon visits a doctor to discuss a problem that has emerged. Not the one you might expect, but this one: “I can’t remember her name,” Rehnquist chuckled, dealing, in his own way, with rumors that some justices are considering retirement after November’s election. Soon Rehnquist will head to Europe. Not to London, where the American Bar Association desperately wanted him to join in its “Common Law Common Bond” meeting, but for a teaching gig in Austria. Rehnquist declined the ABA’s invitation, and John Paul Stevens recently bowed out as well because of his wife’s hip problems. But four other justices will be scurrying around London in their stead. Anglophile Stephen Breyer will sit on a panel with Microsoft slayer Thomas Penfield Jackson of the federal trial court in Washington, D.C. The jurists will preside over the mock trial of the “two Georges”-George III, charged with tyranny, and George Washington, charged with terrorism. On another day, Breyer will opine about public confidence in the justice system along with the likes of British mystery writer P.D. James. Justice Sandra Day O’Connor will help rededicate the ABA’s Magna Carta Memorial in Runnymede. Anthony Kennedy, also teaching in Austria, plans to speak on a couple of panels. And even Ruth Bader Ginsburg, weary from her cancer treatments, will keep to her schedule and discuss human rights. David Souter heads off to New Hampshire; Antonin Scalia to the Outer Banks for part of the summer; and Clarence Thomas is expected to stay closer to home in Virginia. It’s the way they rest and recuperate from this term’s hard-fought battles. By any measure, the wounds are more numerous than usual. “They were like a law school faculty this term,” says Akhil Reed Amar, a professor at Yale Law School. “You know, we get along great in September, but by spring things get tense. Then we take the summer off, and everyone’s happy again in September.” For a while late last month, it seemed that the only happy note that the justices struck was at the law clerks’ annual skit — performed on June 27, the Tuesday between the justices’ final decision drops on the Monday and Wednesday of the last week of the term. One clerk did what one viewer said was a “dead-on” imitation of Breyer’s mannerisms, and other clerks skewered the chief justice as well. The justices laughed hard, and some pronounced the program the best they’d ever seen — though that tends to get said every year. But the laughter was short-lived. Back on the bench the following morning, Scalia let it rip. In Stenberg v. Carhart, the decision striking down a law forbidding partial birth abortions, Scalia gained no friends by comparing the majority decision to two of the Court’s most infamous rulings: D red Scott v. Sandford, upholding slavery, and Korematsu v. United States, endorsing Japanese-American internment. The Court’s entire jurisprudence has been distorted by its misguided defense of abortion, Scalia said angrily in another June 28 dissent, this one in Hill v. Colorado. The majority was not only making it harder for states to restrict abortions, but also making it more difficult for abortion opponents to dissuade women from having them, Scalia lamented. Scalia spoke of the “ad hoc nullification machine that the Court has set in motion to push aside whatever doctrines of constitutional law stand in the way of that highly favored practice.” In Dickerson v. United States, upholding the Miranda warning, Scalia said the majority decision — written by ally Rehnquist — will stand for “the power of the Supreme Court to write a prophylactic, extraconstitutional Constitution.” The list of high-velocity dissents from Scalia was long this term. Scalia, of course, is well-known for not holding anything back when he is in the minority; he once said that writing dissents made life bearable. As Amar puts it: “He has never been a justice who cares most of all about counting to five.” But Scalia’s bitter alienation never seems to move him toward getting off the Court — a perennial rumor that blossomed again this term. A close friend of Scalia’s has said that as angry as he may seem, Scalia has become too fond of the work, rhythms, and trappings of the Court to imagine living on the outside. Another notable aspect of Scalia’s anger and sarcasm this term was the extent to which it was directed at Souter. In his June 19 concurrence in Crosby v. National Foreign Trade Council, Scalia attacked Souter’s majority opinion, in essence, for wasting space. The Massachusetts Burma law was clearly pre-empted by congressional enactments on the subject, Scalia agreed. But he attacked Souter for coming to that conclusion by citing legislative history, when the words of federal law would have sufficed. Four of the six paragraphs of Scalia’s dissent begin with the phrase “It is perfectly obvious on the face of this statute,” and end by accusing Souter of “pointless” determinations about what Congress intended rather than what it said. “The portion of the Court’s opinion that I consider irrelevant is quite extensive, comprising, in total, about one-tenth of the opinion’s size,” wrote Scalia. “I consider that to be not just wasteful … but harmful, since it tells future litigants that, even when a statute is clear on its face … statements from the legislative history may help (and presumably harm) the case.” With concurrences like that, Souter might ask, who needs enemies? Souter turned the other cheek in Crosby, ignoring Scalia’s sniping. Yet in another rich but little-noticed exchange this term, Souter could not resist responding to Scalia. It came in Johnson v. United States, decided May 15. The decision interpreted the Sentencing Act of 1984, and turned on what Congress meant when it said judges could “revoke” supervised release under certain circumstances. Writing for the majority, Souter considered at length whether that word implied a sort of “calling back” that would allow judges to order supervised release again after a period of reimprisonment. Souter said it did, but Scalia said it did not, and that once revoked, supervised release should not be available again. Even Scalia in his dissent said, “This is not an important case.” But he criticized Souter’s method of interpreting the word “revoke.” Scalia wrote, “Of course, the acid test of whether a word can reasonably bear a particular meaning is whether you could use the word in that sense at a cocktail party without having people look at you funny. The Court’s assigned meaning would surely fail that test, even late in the evening.” Scalia ridiculed Souter’s “calling back” interpretation of the word “revoke” by suggesting the absurd sentence, “Since my bird dog was ranging too far afield, I revoked him.” Souter rose to the bait: “Justice Scalia’s cocktail-party textualism … must yield to the Congress of the United States,” Souter wrote in a footnote. “Not that we consider usage at a cocktail party a very sound general criterion of statutory meaning: a few nips from the flask might actually explain the solecism of the dissent’s gunner who revoked his bird dog; in sober moments he would know that dogs cannot be revoked, even though sentencing orders can be.” But Scalia had the final word. In a responding footnote in his dissent, Scalia said, “The Court chastises this [bird dog] example, suggesting that only a tippling hunter would ‘revoke’ his bird dog. … I could not agree more. However, the definition the Court employs … envisions that dogs can be revoked.” Backpedaling bird dogs and liquor-tested lexicography: It was that kind of term at the Supreme Court — a term that even Scalia, wish as he might, cannot revoke.

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