Scalia Hogs the Ball
Supreme Court oral argument as a solo sport.
Cornelia Pillard, who has 15 minutes to argue for Hibbs, starts off by rattling out statistics revealing that women are offered vastly more time off than men, which makes women less attractive employees. Scalia stops her to say that there's a difference between "allowing mothers who gave birth to recuperate" and allowing fathers to care for babies. Pillard says parenting leave is not the same as "maternity disability" leave; that Pennsylvania, for example, gives women up to six months maternity leave with no provision at all for men to care for infants. Here Ginsburg pulls what sportswriters could only call a double-Scalia by giving a little speech about a father who isn't excused from jury duty because the court insists "you don't take care of children." Pillard, somewhat stunned by Ginsburg's random assist, agrees that it does illustrate the problem.
Scalia (Ginsburg and he are dear friends, by the way) starts beating on Pillard about the mandatory 12-week leave requirement in FMLA. "How can Congress impose 12 weeks on a state?" he asks. Later, Pillard says that "until a generation ago" states overtly restricted the employment of women for these reasons, and Scalia jumps in to ask (and now he just appears ornery), "How many years is a generation?"
Finally, Viet Dinh gets 15 minutes to argue for the Justice Department, taking the position that the states are not immune from FMLA under the 11th Amendment. Again, Scalia doesn't let his colleagues get a word in edgewise. Again, Ginsburg offers an uncharacteristic speech as opposed to a question, and Justice John Paul Stevens prefaces his own question with: "Justice Scalia should probably ask this question but ..." Scalia interrupts him to say, "Pass it to me."
While I don't always agree with Justice Scalia, I am always awed and moved by his brilliance. But someone needs to remind him that there's a difference between hiding the ball, which is pretty aggravating at oral argument, and hogging it, which is worse.
Dahlia Lithwick writes about the courts and the law for Slate.