Dispatches

Supreme Court Dispatches

The Supremes Unplugged

On the first day of law school, you’re told to look left and then to look right. One of the two people flanking you won’t be graduating, you’re told, which is supposed to terrorize you into reading 1,200 pages of case law each night and preparing your own Contracts outline. Of course, more terrifying still is the Stanford Law School version of that speech, wherein a kinder, gentler dean tells you to look left, look right. You’ll all be graduating together … after which the student on your left has a massive nervous breakdown and drops out before his Civil Procedure final.

That’ll get you reading that case law, boy.

The twin engines driving the legal profession are 1) the fear of screwing up; and 2) unvarnished greed. Most attorneys allocate much of their sleeplessness to fretting over the enormity of the imagined foul-up they made in Footnote 35 of their Reply brief. The rest of their sleeplessness is dedicated to dreaming about the boat they’ll buy when they make partner (assuming no one ever finds out about Footnote 35).

At least some part of what goes on at the U.S. Supreme Court is about fostering fear among the supplicants. Here in court uniformed guards walk the marble halls while justices can shellac attorneys with brutal questions. The rules are endless: no cameras, tape recorders, hats, overcoats, magazines, books. No sunglasses, display buttons, ID tags. No note-taking is allowed by anyone other than the press. (I was told by a former clerk that scribbling distracts the justices.)

The grandeur of it all could take your breath away.

In the courtroom today, the cases are—to paraphrase Oliver Wendell Holmes—sucky ones. I count six reporters. I count five law clerks. The gallery has lots of empty seats in it. This is good news for a Slate dispatcher, however, as I am allowed to move from my usual station (behind two pillars, a red velvet curtain, and four rows of legal commentators) to a coveted seat at the front of the press gallery.

The first of the two cases is a tax matter. I believe I’ve already said too much about it. And if you plan to drive or operate heavy machinery tonight, you’ve already heard more than enough.

The second case concerns a civil procedure matter arising from a series of screw ups. The first screw up took place in a district court in Fargo, N.D., when a plaintiff in a wrongful death action against a baseboard heater manufacturer put some faux-expert witnesses on the stand to prove the heater in question was defective. Then the district (trial) court judge screwed up in letting the faux-expert evidence get to the jury. The jurors found for the plaintiff (relying on the faux evidence), and the trial judge denied two post-trial motions filed by the defendant heater maker.

Enter the Eighth Circuit Court of Appeals, which decided the expert testimony was bad and that without the bad evidence the jury could not have found for the plaintiff. It further decided that the heater maker was entitled to a judgment as a matter of law, rather than being spiked back to the district court for a retrial. The Eighth Circuit rather loftily dismissed any and all of the plaintiff’s claims with the statement that “this is not a close case. The plaintiffs had a fair opportunity to prove their claim and they failed to do so.”

In sum: Trial lawyers screw up. Trial judge screws up. The Eighth Circuit decides facts warrant no retrial. The plaintiff asks the Supremes to decide whether the Eighth Circuit screwed up.

Problem? The appellate attorneys have screwed up, too. Before Paul Strandness, attorney for the plaintiffs, can finish a sentence, Justice Rehnquist asks him to talk about a case—Neely vs. Martin K. Eby—that is directly on point. Both lawyers will be pilloried today for failing to properly address Neely in their briefs. Strandness promises the chief justice he will talk about Neely and proceeds not to do so. He is attempting to argue that the courts of appeals should not have the discretion to decide any case with finality based on a “truncated record.” Justice Ginsburg finally asks whether he really means to be arguing that courts should be taking inadmissible evidence into account when making sufficiency of the evidence determinations.

I look to the right.

The usual flurry of activity is taking place on the right side of the bench. At the far right sits Justice Breyer, bearing a startling resemblance to The Simpsons’ Montgomery Burns. The best analogue for what goes on with Breyer’s constantly moving hands would need to be “vogueing.” À la Madonna. Circa 1985. Breyer alternately covers his forehead with his hand, cups his chin with his hand, or clutches his head with his hand. Sometimes he does this all at once. As he does so, he offers multilevel hypotheticals—numbering his own points—including a four-parter this morning which he ends with: “So. Those are all my questions. And what is your answer?”

Next to Justice Breyer sits Clarence Thomas. Who does not speak. At least not to the lawyers. At 11:01 a.m. he whispers to Breyer and they both smile. At 11:04 he leans back in his chair with his eyes closed. At 11:09 he and Breyer are again engaging in a spirited conversation about something; they involve the marshal’s aide behind them at one point. At 11:12 Justice Thomas is whispering to Justice Kennedy, who sits on his right.

It is distracting to the justices when people in the gallery take notes.

Justice Kennedy is the only one of the nine who looks like a regular guy. By this I mean that I can easily imagine him with barbeque tongs in hand. (I can imagine O’Connor with a pastry crimper, but even that is a stretch for me.) Kennedy shares Thomas’ propensity to rock back and forth in the Big Chair. Sometimes they rock together. At 11:39 this morning, he and Thomas are going in perfect syncopated rhythm. They are like the Rockettes up there. Attorney Strandness tries not to notice as he answers Justice Scalia’s question.

I look to the left.

On the left side of the bench sits Ruth Bader Ginsburg, sphynxlike. She moves almost not at all during oral argument but fixes her eyes steadily on the attorney addressing the court. Her stillness runs over into the stillness of Justice Souter, who sits to her left. Like Ginsburg, Souter neither fiddles with papers, chugs water, nor boogies in the Big Chair during argument. Souter is blessed with that wonderful 1920s New England drawl, which lets him say “lawr” when he means “law” and “era” when he means “error.” He does not chat with Justice Scalia, who sits to his left.

Justice Scalia is subdued today. Whereas Justice Stevens is positively gleeful as he tortures Christine Hogan, attorney for the heater makers, for failing to call the court’s attention to Neely. “I guess you didn’t find it until later,” he crows.

“That may be true,” she concedes.

The justices each have their own spittoon back behind the bench. Honest to God. To my dismay, not one of them, not even Justice O’Connor, avails themselves of it today. I’d spit if I were them. Just because I could. Lifetime tenure. I could look to the left and look to the right and know the person next to me will be sitting there for 20 years. And I could spit, or whisper, or wave a pastry crimper, all without distracting the justices.