Dispatches

Supreme Court Dispatches

The Supreme Court Lights Up

How important is a question?

The Supreme Court grants certiorari (review) in only about 100 of more than 7,000 petitions filed each year. Its term lasts from October through April, and the court hears oral argument only on Mondays, Tuesdays, and Wednesdays, and for only two weeks each month. Oral argument for every case lasts an hour (except in a few extraordinarily important cases). Each side has 30 minutes to speak, and those 30 minutes can be divided among parties if there are more than two joined in the case.

Let’s review: 100 cases. Six half-days per month. Thirty minutes per side. The most important 30 minutes in most lawyers’ professional lives. Yet many of the skills required to be a great litigator actually undermine good oral advocacy. Without jurors to woo, witnesses to impeach, and the inestimable power to holler “Ob-jection!” at randomized intervals, some of the best lawyers stand before the High Court stripped of their best party tricks.

Why? It’s the questions. Trial attorneys are all about their questions. They know how to lead a witness, badger a witness, impeach a witness, resurrect a witness–all by lilting their voices up at the ends of their sentences. “Isn’t that right, Mrs. Beamish?” But some lawyers don’t know how to answer questions, and that is how they fumble before the Supremes. Today’s oral argument–featuring two of the most important cases this term–could well be subtitled Hanged on Your Own Hypothetical or: Anything You Say Will Be Used Against You in a Court of Law.

The first case–“a biggie” in legal parlance–was FDA vs. Brown & Williamson Tobacco Corp. It addresses the shameless power-grab by the FDA in 1996, when the agency first decided it had jurisdiction to regulate tobacco as a drug and then enacted all sorts of long-overdue regulations to keep children from smoking. This suit was brought by the tobacco industry, which argues–and the Fourth Circuit agreed–that tobacco products are not a drug, never have been a drug, and that the FDA should (must … make … joke …) butt out.

The second case is Mitchell vs. Helms–an Establishment Clause case that digs even deeper into the hideous jurisprudential quagmire governing state assistance to parochial schools. The Fifth Circuit found a federal program putting computers, software, and library books into both public and religious schools violated the church-state provisions of the First Amendment. This case isn’t just about computers. It’s the best signpost we have for where the court plans to go on school vouchers.

Both cases are ripe for the sultry Dance of the Seven Hypotheticals that will unfold today. The tobacco case–because the FDA is stretching its own statutory definition of “drug” in the most excruciating ways; and the school funding case–because the current law makes it permissible for taxpayers to fund textbooks but not maps in religious schools; books but not films; buses but not for field trips; and Chocolate Kisses but not Chocolate Virgin Mary’s (I made that one up). The lawyers on both sides of Helms have to try to sound like 1) there is some principle logic behind the mess of existing case law; and 2) principled logic favors them.

Hypothetical questions have driven more than one law student to therapy and beyond (job at Starbucks). Just when you think law school is beginning to make sense, a Property professor will peer down the bridge of his pointy nose at you and–utilizing your last name only–ask that you analyze the Rule Against Perpetuities, except, he will add, “imagine the deceased was a duck.”

Bladder failure. Raucous laughter of 150 peers.

In today’s tobacco case, the justices were having a blast with the FDA’s definition of “drugs” as “articles … intended to affect the structure or any function of the body of man or other animal” (hair clips?). They define “device” as “an instrument … intended to affect the structure or any function of the body” (StairMasters?). The FDA’s decision to grab jurisdiction over tobacco as a “device/drug” turns on its 1995 decision that tobacco is a sedative, stimulant, appetite suppressant, and is addictive to boot. Those things affect the structure of the body, argues Seth Waxman, the solicitor general.

So do horror movies, snaps Justice O’Connor. You gonna start regulating the horror movie industry?

“No one suggested regulating horror movies or guns,” replies Waxman.

“Well, 30 years ago no one suggested regulating cigarettes either,” retorts Justice Rehnquist. Lesson 1: Don’t mock the justice’s hypotheticals.

Later, it’s Justice Souter’s turn to offer a hypothetical. He suggests that following the plain language of the FDA definition would require “regulating clothing.” Not to be outdone, Justice Scalia suggests that maybe the FDA would like to start regulating alcohol too, observing that we “already tried banning that.”

Richard Cooper, representing the tobacco companies, is not spared the hideous hypotheticals. Justice Ginsburg asks, “Are you saying that if heroin was legalized, the FDA couldn’t regulate it?”

Cooper finds a distinction: “If it doesn’t purport to have health benefits, the FDA cannot regulate it.”

“Even if it’s harmful and ingested into the body?” rejoins Ginsburg.

“They don’t regulate household cleaning fluids.”

Ginsburg is getting testy. She explains that she doesn’t mean things ingested by accident, but dangerous things intended to be ingested. Cooper comes back with illegal street drugs. No one tells him that the FDA doesn’t regulate those because they are already illegal. Lesson 2: Do not respond to hypotheticals by advocating legalizing illegal things so they may not be regulated by the FDA.

Justice Breyer, making no secret of his opinion in this case, crafts a hypo for the ages: What if, he says, you could get the effect of a thermal glove in a pill, which when metabolized affects your brain and warms your hands, could the FDA regulate that?

“Sounds like alcohol,” quips Cooper. Silence. “There are other statutes to regulate that,” he suggests.

“But why couldn’t the FDA regulate it?” persists Breyer. “Why does a pill that keeps your hand warm differ from a pill that makes you slim and trim?” (“Yo. Wanda. Let’s recall the fen-phen but start selling Mitten-Phen.”)

The best hypo of the tobacco case, however, goes to Justice Scalia, suggesting that if the FDA can regulate smoking because it’s bad for your health, they should regulate downhill skiing since it’s dangerous too. I have it on good authority that Scalia is a smoker. Lesson 3: When a hypothetical is offered as a joke, one need not answer at all. Especially when it comes from a smoker.

The hypothetical bloodbath occurs in Helms, the school funding case, when Justice Rehnqhist rehqests a “limiting principle” from Michael McConnell–attorney for the parents at the parochial school. Rehnquist wants to know, in effect, where the schools draw the line between acceptable government funding and funding violative of the Establishment Clause. McConnell starts to do something resembling the hokeypokey. He’s answering everything but the question.

Rehnquist interrupts: “Could you answer my question?”

McConnell attempts to not answer in a different way. Rehnquist interrupts again: “I hope you plan to answer soon.” Justice Stevens tries to offer some guidance, telling counsel to answer yes or no, then explain. Scalia jumps in, asking if it’s constitutional to provide a poor school with window shades? Is it permissible, asks Rehnquist, to build an entire parochial school?

“But the government has never proposed building a whole school …,” McConnell yelps.

“Maybe it hasn’t, but the chief justice just did,” spits Souter. McConnell tries to explain why he’s “resisting the hypothesis.” (I tried this once myself in Contracts. I got a C-minus.) Justice Scalia finally snaps: “Why don’t you just say it’s no good?”

Barbara Underwood, the deputy solicitor general, is given only 10 minutes to defend the constitutionality of the school aid. She does a better job with the hypos. “Math books?” asks Souter. “OK.” “Lecterns?” asks Rehnquist. “Yes, for chem lab; no for chapel.” A-plus, Ms. Underwood.

Lesson No. 4: When the court asks a hypothetical seeking a limiting principle, find one. Even if it’s their fault the law’s so goofy in the first place.