Justice Scalia opens the 2006 term with a bang.

Justice Scalia opens the 2006 term with a bang.

Justice Scalia opens the 2006 term with a bang.

Oral argument from the court.
Oct. 3 2006 6:28 PM

Tequila Mockingbird

Justice Scalia opens the 2006 term with a bang.

Antonin Scalia. Click image to expand.
Antonin Scalia

My cabdriver seems to be taking pains to stick to the back streets on his way to the Supreme Court this morning; he's steering clear of the streets that bound the Capitol Building, as if all the sex/influence peddling/racism scandals sicking up Capitol Hill might somehow cease miraculously at Maryland Avenue. And as the court resumes hearing cases on this first Tuesday of October (Monday having been called on account of Yom Kippur), I find myself relieved, again, to be covering the one branch of government in which the ick factor consistently remains exceedingly low.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate, and hosts the podcast Amicus.

Imagining scandalous IMs from the justices to their clerks takes you no further than:

NINO86 (11:55 pm): Hey, did you remember to cite check the latest draft opinion in Gonzales?
ClerkX (11:57 pm): lol. Sure did. Just got that 565 F. Supp. 110, 118 (ND Ga. 1982) in too!!!!
NINO86 (11:59 pm): Kennedy's clerks still trying to work in quotes from Sartre and Baron de Montesquieu every other line? ;)
ClerkX: (11:59 pm) lol. Yup.
NINO86: (12:00 pm) rotfl. Now get back to work.

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Laugh all you want at the pompousness and self-importance of the high court, but the justices are—with few exceptions—pathologically cautious about being decorous. And yet one of those exceptions, Justice Scalia, creeps right up to the line again this morning. And, as is always the case, one has to wonder why.

The first case of the term is a pair of consolidated immigration cases— Lopez v. Gonzales, (out of the 8th Circuit Court of Appeals) and Toledo-Flores v. United States (out of the 5th). Both cases turn on a question of statutory interpretation: Lopez and Toledo-Flores were noncitizens convicted for drug crimes that were felonies under their respective state laws, but misdemeanors under federal law. The Immigration and Nationality Act provides that noncitizens convicted of "aggravated felonies" can be deported. The question for the courts is whether "aggravated felonies" should include convictions that are felonies under state law, but only misdemeanors under federal law.

Lopez was arrested in South Dakota for cocaine possession. The INS, appeals court, and the 8th Circuit all agreed that his state drug felony supports deportation under the immigration laws. Toledo-Flores was convicted of the Texas state felony of possessing 0.16 grams of cocaine. The 5th Circuit affirmed his deportation.

Most of this morning's argument is a deathly parsing of the language in the Immigration and Nationality Act's definition of "aggravated felony," 8 U.S.C. § 1104 (43) (B), which sends us back to the definition of a "drug trafficking crime" under 18 U.S.C. § 924 (c). But in order to parse that, you need to close-read the Controlled Substances Act (that's 21 U.S.C. § 802, for those of you who didn't glaze over at the first sight of a §).

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This is only really important insofar as several other circuits have adopted the rule that deportation requires that you commit a felony under federal, and not just state, law. The court needs to resolve the split between the circuits. And the problem, as is often the case in disputes over statutory construction, is that the statutory language is ambiguous.

I pause to add that, for those of you who have relied on my crap handwriting and iffy short-term memory as I have written up these dispatches for the past few years, those days are over: The high court has, as of 2:24 p.m. Eastern, already posted today's transcript right here. A constitutional moment. Thus, I state with confidence that the word "ambiguous" is uttered five times today and "ambiguity" twice, including multiple utterances by Justice Stephen Breyer, who finds the statute both "perfectly ambiguous" and rife with "perfect ambiguity." So, what do the courts do with an ambiguous statute? Pretty much what anyone else would do. They fuss themselves into a lather.

Timothy Crooks is the assistant federal public defender representing Reymundo Toledo-Flores and—as his client has already been deported to Mexico—he's in the unenviable position of having to persuade the justices that his case isn't moot. Crooks states that even though his client is no longer in the United States, "he is still subject to the supervised release portion of his sentence." An incredulous Chief Justice John Roberts wonders how a deportee can possibly be subject to his probation conditions if there is no one to supervise him. Crooks replies that his client is still not allowed to "use alcohol, or associate with persons … " (He is interrupted here.)

Crooks adds that there are cases in which deportees have been extradited back to the United States based on violations of their supervised release, and that he may in the future want a visa to visit the United States, since his children live here. Justice Scalia says that "the doctrine of standing is more than an exercise in the conceivable. … Nobody thinks your client is really, you know, abstaining from tequila down in Mexico because he is on supervised release in the United States."

Nobody laughs. But then, nobody winces or flinches, either. Somehow, a remark that would have flattened us had a Souter spoken it is just a solid day at the office for Scalia. I have no idea where the tequila comment should register on the nation's macaca-meter. The more interesting question is about Scalia's deliberate carelessness with language, his sense that he is somehow above the sorts of linguistic delicacy the rest of us expect in our dealings with others. Indeed, he seems to think it's his obligation to be ever more reckless with his words, perhaps because he's about the only guy left who faces no consequences for his rhetorical body-slams.

Deputy Solicitor General Edwin Kneedler defends the government position, and the liberal justices pound at him awhile over the basic unfairness of a system that would allow for deportation, based on the random accident of which state you were in when you broke the law. Justice David Souter suggests: "It seems very odd given the tension between the state and federal classifications to say that for federal purposes the state classification is going to trump the federal classification." Even Scalia balks at Kneedler's "double inconsistency" that could preclude a deportation if a state treated a crime more leniently than federal law, concluding "you've thoroughly confused me."

If George Allen had uttered Scalia's "nobody thinks your client is abstaining from tequila" crack today, it would have been front-page news. The rest of us would have been forced to form some opinion as to whether it was an "aspersion," a stereotype, a gaffe, or just a celebration of worm-laden beverages. But the court exists on a different plane, and for good reason. We don't want every branch of government to be beholden to the electorate, but that doesn't mean that the justices shouldn't be beholden to themselves. Scalia wants to be a part of the national conversation, but not on the terms the nation has agreed to. And each time he unleashes one of these remarks, I find myself wondering whether he's protecting his right to express himself, or just relishing his free pass.