The problem for the court is that the appeals court sort of agreed: The Constitution had been violated, it found, but it also said that the officers were immune from civil liability, because of sovereign immunity and the principle that the state agents couldn't have known at the time that they were violating the child's rights. That means that the cops won at the appeals court, even though they lost, and that the entire appeal at the high court is probably moot. We spend a lot of time this morning looking at questions of mootness, standing, and Article III controversies, all of which suggest that the child—now 17 and residing out of state, and having scored only a "moral victory" at the appeals court—has no remaining interest in fighting this case.
Thus, the moment lawyer Carolyn A. Kubitschek rises to argue, on behalf of the child, that the whole appeal is moot, Roberts stops her in her tracks, asking, "Why are you here?" and adding—even before the first round of laughter dies down—"Why didn't you just go away?" This will more or less be the theme of the day. The court seems to agree—almost, dare I say it, unanimously—that it can make this case go away somehow, and leave the really hard questions about the correct constitutional scope for interrogating children in schools for another day.
But, hey, it's open-mike night, and the chief is really killing it. When Oregon's wunderkind Attorney General John Kroger notes that Roberts had pointed out, only moments earlier, that the 9th Circuit's ruling has created a "cloud of uncertainty" for law enforcement officials about how they may now question a child, Roberts interrupts him to say—of himself—"Well, I am not so sure he was correct."
Even the marshals have stuff coming out their noses.
Later, when the justices briefly deign to get to the question of whether such interrogations in school are constitutional, Justice Sonia Sotomayor asks Kubitschek a series of questions about how long a child would need to be interrogated before it became an unreasonable seizure. (In this case the questioning allegedly took two hours.) When Kubitschek appears to be dodging Sotomayor's questions, Justice Antonin Scalia hisses at her, "She's helping you, I think!"
Scalia then proceeds to ask Kubitschek a lengthy question about her definition of the word seizure, noting how unhelpful it is for purposes of drawing a clear line. When he is through with his question, but before Kubitschek can respond, Roberts peers down at her earnestly and explains, "He was not trying to help you."
Jump back, James Franco. I know who ought to be hosting the Oscars next year.
Sometimes, amid all the accusations of partisanship and bias and ugly ideological splits at the Supreme Court, it's easy to forget that the justices are really just nine pretty funny people. And that as much as the justices may rage and fume among themselves, they are always capable of coming together to do battle against the one and only thing that terrifies them even more than each other: The 9th Circuit Court of Appeals.