With the end of the U.S. Supreme Court term, summer officially begins for court watchers, so enough of this serious stuff! To borrow a line from The Lettermen classic, "We will have these moments to remember."
DESPERATELY SEEKING A POKER FACE
It was State of the Union déjà vu. As Justice Ruth Bader Ginsburg read a summary of her dissent from the bench in two job-bias rulings, one of them written by Justice Samuel Alito Jr., Alito, who sits immediately to Ginsburg's left, rolled his eyes and shook his head "no" repeatedly. Ginsburg noted that sometimes a worker could successfully tell a harassing or annoying co-worker to "buzz off," but not always. Hmmm.
A DICTIONARY, A DICTIONARY, MY KINGDOM FOR A DICTIONARY!
Justice Scalia: "What's a Magic 8 Ball? I don't know what you're talking about."
Justice Stephen Breyer: "A Magic 8 Ball is you have — that's a little thing, it's the — it's a nonsportsman's equivalent of throwing darts." (Oxford Health Plans v. Sutter)
Or, hypothetically, inside Breyer's mind as he reads Scalia's dissent in the Defense of Marriage Act (U.S. v. Windsor): "What's legalistic argle-bargle? I don't know what you're talking about."
GOOD FOR THIS CASE ONLY
Bush v. Gore is cited for the first time in a Supreme Court opinion by Thomas in a footnote to his dissent in Arizona v. Inter Tribal Council of Arizona.
In concluding his argument on behalf of same-sex marriage in Hollingsworth v. Perry, Theodore Olson, who argued and lost the defense of the Virginia Military Institute's male-only admissions policy in U.S. v. Virginia (1996), told the court:
"I respectfully submit that we've under — we've learned to understand more about sexual orientation and what it means to individuals. I guess the language that Justice Ginsburg used at the closing of the VMI case is an important thing, it resonates with me: 'A prime part of the history of our Constitution is the story of the extension of constitutional rights to people once ignored or excluded.' "
HOW NOT TO WIN FORMER DISTRICT COURT JUDGES AND INFLUENCE DECISIONS
Paul Clement of Bancroft, in arguments in Sekhar v. U.S.: "Well, a couple of things, Justice Sotomayor. I went back to the Tropiano case because it is sort of the progenitor of this whole line of Second Circuit cases, and I noticed two things. One, I noticed it was written by a district court [judge] sitting by designation. So I mean, I — I don't mean anything by that other than this is not Marbury. Second…."
Justice Sonia Sotomayor: "Oh, I think when I sat as a district court judge, I would have been insulted by that."
Clement: "Well, it's not — it's a good thing you're no longer sitting in that capacity, Your — "
Sotomayor: "Okay. It really is, for you."
IF A TREE FALLS IN A FOREST AND EVERYONE IS THERE BUT DOESN'T HEAR
During oral arguments in Boyer v. Louisiana, Justice Clarence Thomas finally broke his seven-year silence, but not to ask a question. He made a joke, but the press and the audience couldn't hear exactly what he said. The unofficial transcript didn't capture the full comment. When the transcript was later updated, it showed Thomas, a Yale Law School graduate, poking fun at the competency of Harvard Law School graduates in the case, in which a Harvard lawyer represented a death row inmate. LOL.
FACTS OF LIFE
Kagan to Charles Cooper of Cooper & Kirk, who argued that the purpose of marriage was procreation: "I can just assure you, if both the woman and the man are over the age of 55, there are not a lot of children coming out of that marriage." (Hollingsworth v. Perry)
THEY'RE HOW OLD?
Michigan Solicitor General John Bursch explained in Metrish v. Lancaster:
Bursch: "I mentioned Reese because it's the most recent application. It cites In re Lamphere, which is an 1886 decision, which itself references the 1810 Territorial Act which abolished common law criminal principles — if you have the statute — "
Justice Elena Kagan: "Do you have something, like, in the middle?"
Scalia to Olson, who argued against California's same-sex marriage ban: "I'm curious, when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted?" (Hollingsworth v. Perry)
Ginsburg to Cooper: "You're saying, no, the State did two kinds of marriage, the full marriage, and then this sort of skim-milk marriage." (Hollingsworth v. Perry)
WELL, WHEN I WAS ON THE APPELLATE COURT …
Justice Alito, a former Third Circuit judge: "Well, when I was on the court of appeals, we thought it was our responsibility to ensure that the district courts were complying with the Sentencing Reform Act. That might not have been true across the river, but — " Sotomayor, a former Second Circuit judge: "It wasn't." (Peugh v. U.S.)
GOING VIRAL, AGAIN
Scalia: "And this last enactment, not a single vote in the Senate against it. And the House is pretty much the same. Now, I don't think that's attributable to the fact that it is so much clearer now that we need this. I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It's been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes." (Shelby County v. Holder)
PITCHING TO THE SWING
Solicitor General Donald Verrilli Jr. closing in the affirmative-action challenge, Fisher v. University of Texas at Austin:
"I think it is important, Your Honors, not just to the government, but to the country, that our universities have the flexibility to shape their environments and their educational experience to make a reality of the principle that Justice Kennedy identified in Parents Involved, that our strength comes from people of different races, different creeds, different cultures, uniting in a commitment to freedom and to a more perfect union. That's what the University of Texas is trying to do with its admissions policy, and it should be upheld."