Today at an oral argument at the Supreme Court, in a case called Brumfield v. Cain, which probes the ongoing problem of executing criminals who may have been mentally disabled at the time of the crime, the justices clearly struggled to master a voluminous trial record. The issue before the court is pretty technical. As the high court chips away at the classes of people who can be executed—having determined in 2002 in Atkins v. Virginia that the Eighth Amendment ban on cruel and unusual punishment bars the execution of a person who is mentally disabled—the question today was simply how and when that mental disability is determined. Brumfield argued that it is wrong for the courts to decide the issue of his mental disability based only on evidence from the sentencing hearing following his murder conviction. Especially since that hearing happened before Atkins was decided. Brumfield’s lawyers argue that he should be given a separate hearing, to decide the question of mental disability.
As Lyle Denniston notes, in early coverage of oral argument, the trial record in the case was enormous, spanning “at least twenty volumes of a record compiled in a state court.” And as he also notes, many of the justices must find it understandably aggravating to have to reconstruct a long and murky factual record on appeal. That said, there’s only one justice willing to go the extra mile and say all this out loud, and again today Justice Antonin Scalia was willing to be that guy. In a case that will mean the difference between life and death for petitioner, Justice Scalia announced as follows:
JUSTICE SCALIA: I haven't read the whole record, you know, and I doubt that I'm going to. And I doubt that this Court is going to read the whole record in all of these Atkins cases in the future. I mean, what you're saying is ... you don't think it's fantastical?
To be sure, 20 volumes is a big, big record. And probably lots and lots of reviewing judges don’t bother to read the record every single day across this great land. But it takes a certain kind of something-something to say it out loud, right there at the highest court in the land.
Or as a friend who was present quipped this morning: “This is why there will never be cameras at the Supreme Court.”