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supreme court dispatches: Oral argument from the court.

In the BedroomA first Monday heavy with rumor and gossip.

By Dahlia Lithwick
Posted Monday, Oct. 1, 2007, at 6:52 PM ET

Dahlia Lithwick was online on Oct. 4 to chat about this article. Read the transcript.

(Continued from page 1)

Roberts too worries that candidates might "look like Republicans but aren't." McKenna says there is really no reason to fear voters will confuse a candidate's party preference with that party's endorsement. Souter asks whether this distinction ever happens in the real world: "Do you know any people who go around announcing, 'I really prefer the Democrats. I'm a Republican myself.'?" McKenna names Sen. Joe Lieberman. Souter laughs, "There's always one."

The chief justice gets things back on track with an analogy: "This is just like a trademark case. People will be confused."

John J. White Jr. has 30 minutes to argue the Republican Party's side of the case.* For the first several, he and Souter spar. "Does the party's right to nominate equal the right to exclude everyone else from the ballot?" Souter asks. Justice Ruth Bader Ginsburg asks how the Washington state GOP determines who is a Republican in the first place. White replies that every party has its own methods. He helpfully explains that the Libertarian Party imposes the most onerous restrictions, by asking its members to sign both forms and pledges.

"So, the Libertarians have a lot more rules than the other parties?" quips Roberts, twinkliness clearly unaffected by the summer's events.

White argues that while most voters can't name a single candidate who is running for Congress, they do know the parties. So, fake preferences could presumably swing elections. Kennedy asks what interest the state has in listing these party preferences on the ballot to begin with. Neither side has a good answer for him. This leads Roberts to conclude that "if there is no legitimate interest for the state here, the initiative fails every level of scrutiny." It's a wrap.

Thomas does not speak again today, content to huddle with Justice Steven Breyer and giggle, as he frequently does. But now I know what hides behind all that hearty laughter, and I confess that it scares my face off. Is it an act of galactic hypocrisy for me to beg, after all these years, to reinstate the separate bedrooms?

Correction, Oct. 4, 2007: The article originally misidentified counsel's name as John R. White. (Return to the corrected sentence.)

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Dahlia Lithwick is a Slate senior editor.
Photograph of Supreme Court Justice Clarence Thomas by Chip Somodevilla/Getty Images. Photograph of the Supreme Court on Slate's home page by Stockbyte/Getty Creative Images.
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Remarks from the Fray:

Huh? Lithwick has built her career upon the thesis that Supreme Court decisions are inherently political exercises. Today, out of nowhere, in order to get in a shot at Justice Thomas, she suddenly believes that the other justices have been working for years to depoliticize the Court?

Basically, Lithwick is stretching to find a way to criticize Thomas that makes her sound wise, rather than petty. To her regular readers, though, this just seems too jarring and out-of-character to ring true.

--Tom_Tildrum

(To reply, click here.)

(10/3)

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