May 23, 2013

You are here: Home / Archives for Supreme Court

A brief history of the Second Amendment in the Supreme Court [contributor]

December 22, 2012 by 8 Comments

Congress is again considering an “assault weapons ban.”  The call is for compromise, reasonable restrictions and common sense gun control. I could go on a lengthy diatribe that was comprehensive in nature regarding the proposed legislation, but others have already responded thoroughly.

Owing to the nature of this blog, I will instead offer a perspective taken from previous court opinions that may be relevant to the proposal.

Our journey begins with the National Firearms Act (NFA) of 1934.  The law imposed a tax on machine guns, short barreled rifles and shotguns, sound suppression devices and other destructive devices.

ShotgunThe NFA was challenged before the Supreme Court in 1939.  Jack Miller and Frank Layton had transported a double barrel shotgun with a barrel length less than 18 inches from Oklahoma to Arkansas.  The firearm was not registered nor was there a tax stamp affixed order for the gun as defined by the NFA. The District Court struck down the NFA on Second Amendment grounds.  On hearing the case (United States v. Miller) the Supreme Court overturned the lower court and held the NFA to not violate the Second Amendment.

The primary reasoning of the Court was that automatic weapons and short-barreled weapons bore no relation to the needs of the common infantryman at the time.

From the ruling:

In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.  Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.

Further, the Court found “that the Militia comprised all males physically capable of acting in concert for the common defense… And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.”

In subsequent references to Miller (of which there are seven), the Court has repeatedly held this basic principle.  The Second Amendment protects the right of the people to possess those guns that would be used by infantryman to defend our freedom.

There have been challenges to the nature of the right Miller defined.  United States v. Warin and United States v. Oakes are most prominent.  The Court’s rulings had painted a picture where the Second Amendment was meaningless.  Under the rulings of Miller, Warin and to notes in Oakes, the Court protected neither a right to keep arms for personal defense nor a right to keep arms to be used in a citizen militia. I am hard pressed to understand what exactly the Second Amendment was protecting in the years leading up to 2008.

In 2008 the Second Amendment received its first direct review since Miller.  District of Columbia v. Heller challenged the District of Columbia’s handgun ban.  The Supreme Court held that the Second Amendment protects an individual right to guns for self defense within the home and within federal enclaves.

Beretta M9Heller, however, left the question of incorporation open.  This was settled two years later in McDonald v. City of Chicago when the Court extended the individual right to all citizens of the United States via the Due Process clause.  The ruling struck down the Chicago gun ban and cleared the confusion regarding Heller’s application to the states.

Taken together, we see that the court has held that the Second Amendment protects an individual right (Heller) of all citizens (McDonald) to guns relevant to self defense (Heller) or guns that bear a relation to individual service in the militia at a given time (Miller).

AR-15

AR-15

At the time of Miller, the official primary infantry arm was the United States Rifle, Cal. 30 M1, commonly known as the M1 Garand.  This gun had an 8 round magazine and was a gas operated semi-automatic action.  That is, for each time the trigger is depressed, one round (shot) is fired.  While officially adopted in 1936, it was not fully deployed until 1941.  Many soldiers at the time of Miller were still issued the 1903 Springfield bolt-action rifle.  Both of these guns sported barrels in excess of 22″ of length.

Today, the modern infantryman is equipped with M4, which is a derivative

M249

M249

of the M16/AR-15 line of guns.  The M4 is a carbine with an overall length of 33 inches and a barrel length of 14.5 inches.  The stock is adjustable for length, it is issued with a 30 round detachable box magazine and a flash hider.  The gun has three fire control modes:  safe, semi-automatic and 3-round burst.  The M4A1 which is issued to certain squads has a different trigger pack: safe, semi-automatic and fully automatic. In addition, in a ten-man squad, you will see two men equipped with M249 Squad Automatic Weapons System, a light machine gun.  General officers, medics, and other non-combat personnel in a combat zone are issued a Beretta M9, a high-capacity 9mm semi-automatic handgun for personal defense.

If the description modern infantry guns sounds familiar, it should.  They are the very weapons at the top of the list that certain members of congress want to ban.  But, they are also the very guns called out by the philosophy of Miller, as protected by the Second Amendment.

 

 

Related articles

 

Enhanced by Zemanta
Filed Under: Second Amendment Tagged With: , , , ,

The Obamacare saga encourages political dishonesty [Contributor]

July 19, 2012 by 3 Comments

[Benjamin Lusty is a lawyer and an occasional contributor to Publius Online]

______________________________________________________________

Political dissemblance over the nature of taxes and regulatory architecture looms as an inevitably dark truth of post-Obamacare government.  Through the tortuous legislative course of Obamacare’s genesis, Democrats continually denied that the individual mandate was a tax, the heaviest word in America’s political lexicon.  Instead, the mandate was a “penalty,” or a “shared responsibility payment.”  (A chillingly Orwellian turn-of-phrase).  The Democrats knew that truth in taxation would slay Obamacare and scuttle their century-long obsession with state-directed flu shots and hip replacements.  So they prevaricated.  What do congressmen call a law that amends the Internal Revenue Code, is enforced by the Internal Revenue Service, and forces families to pay up to 2.5% of their incomes into the federal treasury?  Anything but a tax.

Unless you’re in court—there, any word will do.

Federal judges are not elected, and the politicians who voted for the law did not appear to defend themselves.  That task fell to elite lawyers who parsed language with forensic care, while insulated from the heat of constituents’ calls, donors’ demands, and lobbyists’ lists.  Those lawyers were high partisans engaged in definitive legal warfare.  Of necessity, they adopted the tactics of expediency:  prevail at all cost and regardless of any incongruity between the facts of the legal case and those of the political case.  When the stakes are command of an entire industry, and control over 16% of the economy, a favorable outcome justifies all political carnage.

Partisan achievement of controversial policy goals, however, is not the purpose of representative government.  Instead, representative government seeks consensus and accommodation of divergent political aspirations.  It only works when legislative process affords principled dissenters all reasonable opportunities to prevail on the merits.  This is impossible, however, when the agents of government cannot even agree to the meaning of the words they use to engage that process.  When a law is a “tax” for constitutional purposes, but a “penalty” for political purposes, the terms of the debate shift underfoot, confounding the discipline that elective politics is supposed to instill.

Some may counter that this is mere wrestling over words, and that the mechanisms of the law are unchanged by the language used to describe it.  But this begs the question over whether it is desirable for officials to tell constituents one thing and judges another.  Is it really acceptable for politicians to soothe the masses while winking to the legal elites who patrol the boundaries of the political system?  Besides, in its essence, government is simply words.  The miracle of self government by words, however, cannot continue if the words themselves are subject to abuse.

In result, Justice Roberts’ opinion sanctioned deception.  President Obama told the public that Obamacare was not a tax, but he told the court that it was.  The outcome of the affair is that “by-any-means” legislation is entrenched in our government, our constitution, and our political reality.  Now, neither political party has any real incentive to discuss tax policy honestly.

By any measure, Obamacare is the most expansive legislation in at least two generations.  It fundamentally alters the relationship between the federal government, the states, and the people.  It significantly amends the tax code, creates a new class of liabilities, and pours every man, woman, and child into a new, mandated, order of economic transaction.  It should not have passed the scrutiny of all three branches of the federal government through variable solipsism.  It should have been subject to the most exacting standards of honesty, procedural fairness, criticism, and consistency.  It was not.  It is the wreckage of political expediency, and the leading edge of continual obfuscation and cynicism.  Repeal may spare us bad policy, but not bad politics.

 

Related articles
Filed Under: Questionable Laws and Lawmakers Tagged With: , , , , , , , , , ,

What is the role of the Supreme Court, anyway?

July 2, 2012 by 2 Comments

From the dissenters to the ACA decision:

“The Constitution, though it dates from the founding of the Republic, has powerful meaning and vital relevance to our own times. The constitutional protections that this case involves are protections of structure. Structural protections—notably, the restraints imposed by federalism and separation of powers—are less romantic and have less obvious a connection to personal freedom than the provisions of the Bill of Rights or the Civil War Amendments. Hence they tend to be undervalued or even forgotten by our citizens. It should be the responsibility of the Court to teach otherwise, to remind our people that the Framers considered structural protections of freedom the most important ones, for which reason they alone were embodied in the original Constitution and not left to later amendment. The fragmentation of power produced by the structure of our Government is central to liberty, and when we destroy it, we place liberty at peril. Today’s decision should have vindicated, should have taught, this truth; instead, our judgment today has disregarded it.”

So much for making the hard calls as a referee.

Filed Under: Constitutional Law Tagged With: , , , , , , ,

Exaggerated Claims: Swallow at Supreme Court to “ensure” unconstitutionality of Obamacare?

May 30, 2012 by 7 Comments

If you’re on the Swallow for AG campaign email list (and I suspect that I will shortly be purged from that list), you just got an email making some exaggerated claims about John Swallow‘s role in the Supreme Court’s review of the Affordable Care Act.

In short, the email walks through a loose timeline for the Affordable Care Act (also known as “Obamacare” more colloquially), putting Swallow at each crossroad of the legal battle. But for him, and Utah, Obamacare might not have made it before the Supreme Court.

Except that isn’t quite how it happened. We’ve already learned that Idaho had passed a law that gave standing to challenge Obamacare, and that Utah jumped on board. Sincerely, of course, but not necessarily crucial to the fight against the Affordable Care Act. It was important politically, but not really legally.

Now, Swallow’s campaign is claiming that he was at the Supreme Court to “ensure” the law was found unconstitutional. It’s a claim that stretches the truth.

Here’s a picture of the claim from Swallow’s campaign:

There is some question about the accuracy of the campaign's claim.

Swallow was in the observation section–the chamber–of the Court during the arguments, but he wasn’t really there “representing” Utah to the Supreme Court and he didn’t have any role to “ensure” that Obamacare be overturned during that trip. In fact, there wasn’t a ton for him to do to “ensure” that Obamacare was ruled unconstitutional. Mostly, his role involved “sitting” and “observing.” Also, later that week, while still there on taxpayer dollars, it involved “campaigning.”

I wanted to be sure, though, that in all of the news I had listened to, read, and watched that week during the historic oral arguments (see posts on it here and here), that I hadn’t missed something.  Maybe Swallow really was doing something to “ensure” it was overturned during that March 26, 2012 date the campaign cites?

No, not really.

The closest article I could find was on March 27, 2012 in the Salt Lake Tribune that indicated Swallow was there…along with four hundred others, including attorneys from twenty-six states who were also on the lawsuit and observing the oral arguments that day.  Other than that, I could not find anything to indicate a more active role in the case. Other lawyers argued, other lawyers filed the briefs, and other lawyers responded to the judges questions.

Other than that, the most prominent mention that Swallow received was for a campaign call he made to 55,000 Utahns during his taxpayer funded trip to D.C. And Swallow did not appear happy about that mention.

“I have a right when I’m not working to do whatever I want to do,” Swallow said. “I have a right to campaign. I have a right to decide if I want to make something an official call or something to promote my candidacy.”  Truly the words of someone intensely focused on fighting Obamacare.

So: was Swallow in D.C. to “ensure” the Affordable Care Act was ruled unconstitutional? Or was he there to promote his candidacy?  Because while I am sure that it was thrilling to be there for the arguments, I’m not convinced that his presence was necessary in the chamber to “represent Utah” or strike fear into Justice Kennedy‘s wavering heart and “ensure” anything other than a call to voters to say “hey! Look! I’m in D.C at the same time as Obamacare is being argued, so, you know–vote for me because there must be an association between being here and my role in the case.”

That’s my theory. It’s a campaign gimmick. If only he hadn’t made that call to exploit his taxpayer-funded trip to D.C.

Other attorneys in the Attorney General’s office, and who were closely connected to the lawsuit against Obamacare, have called Swallow’s role in the case into question, too:

[...]Utah’s former solicitor general, Annina Mitchell, who was the designated point person for the state [on the Obamacare challenge] up until her retirement last year, said Swallow’s claim is exaggerated.

“That’s so disappointing. It’s not true,” Mitchell told The Tribune Friday. “I’m disappointed, as someone who worked with him, that John feels it necessary to mislead Utahns about his role.”

Mitchell, who served at the Attorney General’s office for twenty years (which also means she has more than twice as many years actually practicing law as John Swallow,  where ”practicing” means more than just having a law degree), was solicitor general for the state for nine years. No small fry in the legal community. When she speaks, other lawyers pay attention. With her litigation experience, she was assigned to the case for her litigation background, not her political connection.  She knew who was lifting the load.

“I don’t remember John Swallow ever making a substantive comment in those conference calls,” Mitchell said. “We read and evaluated the materials, but we’re not talking about a huge investment of time or litigation skill.”

Back to the beginning: Swallows campaign has exaggerated his role in the fight against the Affordable Care Act. And if they’re willing to exaggerate that, what else are they willing to exaggerate about Swallow?

(I’m not even clear that John Swallow always understood the legal path the case would need to take to get to the US Supreme Court. At one point in 2011, he tweeted that the Florida Supreme Court was about to rule on the case, instead of the District Court of Florida. [blackbirdpie url="https://twitter.com/JohneSwallow/status/32122629380898816"] Any first year law student could tell you that a challenge to a federal law like Obamacare would need to come through federal court, not state court. Further, anyone who was as closely connected to the case–let alone leading it, would know which court was about to rule on it. It may be a minor mix up, but for a lawyer who is claiming leadership on the case, it’s an embarrassing faux pas that could have been resolved even by just looking at the newspaper that day).

Related articles
Filed Under: Questionable Laws and Lawmakers Tagged With: , , , , , , ,

Obamacare before the Supreme Court: “The Emperor Has No Clothes!”

March 29, 2012 by 3 Comments

Courtroom illustration shows Deputy Solicitor General Edwin Kneedler speaking to Justice Antonin Scalia and Chief Justice John Roberts of the U.S. Supreme Court in Washington

In a case of “the Emperor has no clothes,” the justices played the part of the skeptic to the Obama Administration’s protestations of Obamacare’s constitutionality.  With the oral arguments on constitutionality of the Affordable Care Act over, let’s take a look back at the reactions to the arguments:

First, the crux of the argument? That the government cannot regulate “inactivity,” an angle that has been pushed by Georgetown professor Randy Barnett:

On Monday, as the court began three days of arguments, questioning by the nine justices suggested they were ready to review the law now rather than wait until it has fully kicked in. That lays the groundwork for arguments for the challenge championed by Professor Barnett: that Congress’s power to set rules for commerce does not extend to regulating “inactivity,” like choosing not to be insured.

Apparently, the Supreme Court is buying the argument, much to the Obama Administration’s dismay.

In “Obama’s Supreme Court Disaster,” Adam Serwer says that the government’s lawyer Donald Verilli should be glad that the Supreme Court doesn’t allow cameras in the court room; his performance was that bad.

Stepping up to the podium, Verrilli stammered as he began his argument. He coughed, he cleared his throat, he took a drink of water. And that was before he even finished the first part of his argument. Sounding less like a world-class lawyer and more like a teenager giving an oral presentation for the first time, Verrilli delivered a rambling, apprehensive legal defense of liberalism’s biggest domestic accomplishment since the 1960s—and one that may well have doubled as its eulogy.

Investors Business Daily feels bad for Verilli, but doesn’t blame him. The Affordable Care Act just isn’t constitutional, the editorials says.

We almost felt sorry for Donald Verrilli, the solicitor general who had to defend the constitutionally indefensible. Over three days of intense interrogation by nine Supreme Court justices, Verrilli failed to muster a single coherent, reasonable argument in support of the ObamaCare law’s constitutionality.

Instead, his shambling, unfocused talking points left the government case in disarray — underscoring what a poorly conceived, badly designed law this was in the first place, and why it must be overturned.

Some think that the disasterous arguments have put the Obama Administration on the defensive over the heart of Obamacare, the individual mandate on Americans to buy healthcare insurance.

That’s a purely political argument to a constitutional question. [White House Press deputy press secretary] Earnest  offered no defense along the lines of the precedential history of Congress and the commerce clause. It is the reach and scope of commerce-clause authority that is at the heart of the high court’s scrutiny of the health care law.

A week ago, ACA supporters were looking forward to a triumph. Now, they’re counting their losses. What happened?

Perhaps the most telling moment was during a question from Justice Kennedy. Ilya Shapiro describes it:

By this point the government’s head appellate advocate was on his heels, dodging increasingly skeptical queries, until Justice Kennedy delivered what in poker would be seen as the key “tell”:

JUSTICE KENNEDY: I understand that we must presume laws are constitutional, but, even so, when you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?

Although you can’t hear it on the audio recording, the audience gasped.

Just like that, the headlines started changing.

The law isn’t dead, yet though, say supporters.

As Mark Twain might say, reports of Obamacare’s demise are greatly exaggerated. While the conservative justices expressed considerable reservations about the law’s scope, Justice Kennedy, the key swing vote, also noted, near the very end of the argument, that the unique context of the healthcare market may be sufficient to validate the “individual mandate.” The biggest challenge the government has faced in defending the law has been the articulation of a limiting principle, and by argument’s end it seemed that Justice Kennedy might have heard one that he could sign on to. If he does vote to uphold the law, it’s possible that Chief Justice Roberts will join him, in the interest of not having the case decided by a single vote, in which case the vote would be 6-3.

On the other hand, Dr. Milton Wolf in the Washington Times is more than sanguine about the demise of Obamacare. He’s predicting complete overturn, and, if not, the downfall of America.

The die is cast: Obamacare will not survive. This is not a prediction of how the Supreme Court will rule on President Obama’s health care takeover, mind you. It’s the harsh reality that if Obamacare does not die a judicial or political death – or better yet, both – it will die an economic death, and if it does, it will take America down with it.

Obamacare’s costs are exploding in the land where budgets already have burst. The $900 billion bargain-basement 10-year cost estimate that Mr. Obama promised for his overhaul recently ballooned to $1.8 trillion. Of course, these are still just estimates, and considering that the government underestimatedMedicare’s cost by a factor of 10, who really knows how massive the final price tag will be?

Welcome to the United States of Greece, where our $15.6 trillion national debt has surpassed the size of our total economy.

Which begs the question: if not Obamacare, what? Healthcare reform is clearly necessary. In the Chicago Tribune,

“One way or another, Congress will have to revisit it in toto,” Justice Antonin Scalia said of the health law.

One way or another.

That should be a clarion call in Washington. The prospect that the court will strike down all or part of the law known as Obamacare hands political leaders of both parties a formidable challenge — and a vast opportunity: a second chance to get health care reform right.

On that point, James Pethokoukis asks “What will Republicans do if the Supreme Court kills healthcare” reform and suggests that perhaps combining Rep. Paul Ryan’s plan (block grants to states for Medicare0 with future president Mitt Romney’s plan (known as the “Hubbard Plan“) might be workable.

The Hubbard Plan has five elements: 1) allow all Americans to deduct from income taxes all their healthcare expenditures—premiums, employee contributions, out-of-pocket costs, etc.; 2) deregulate insurance markets to foster nationwide, portable health insurance; c) making health information more available; d) control anti-competitive behavior such as hospital mergers; e) malpractice reform.

In the meantime, stay tuned. The law hasn’t been overturned, yet, and still may stand. While you’re waiting, jog on over to the Sweaty Federalist for his snark on some of the arguments being made to uphold the law.

[AEI] [Glenn Hubbard] [Mother Jones] [Washington Times] [Investors Business Daily] [National Journal] [The Nation] [Chicago Tribune] [New York Times]

Related articles
Filed Under: Commerce Clause, healthcare reform Tagged With: , , , , , ,

And the funniest guy on the Supreme Court is…

March 4, 2011 by Leave a Comment
Roberts

Image via Wikipedia

All work and no play makes Jack a dull boy. And Chief Justice Roberts has taken that to heart.

On Monday, while the Supreme Court was taking oral arguments and handing down opinions, the Chief took several opportunities to poke fun and to shoot off a witty question.

After handing down a unanimous opinion rejecting AT&T’s argument that because corporations can be considered persons for free speech purposes, they can also be considered to have privacy rights like persons, too, Roberts, writing for the Court, took AT&T to task, denying that corporations have anything like “personal privacy” for purposes of FOIA (Freedom of Information Act). As reported by Slate writer Dahlia Lithwick, the Chief had started during oral arguments for the case:

[T]he chief spent the better part of the hour poking fun at AT&T’s claim that the adjective personal means the same thing as the noun person, such that the statute’s treatment of corporations as “persons” means that corporations are also somehow capable of getting “personal.” As he explained at argument, that claim makes no sense. “I tried to sit down and come up with other examples where the adjective was very different from the root noun,” he observed at the time. “It turns out it is not hard at all. You have craft and crafty. Totally different. Crafty doesn’t have much to do with craft. Squirrel, squirrely. Right? I mean, pastor—you have a pastor and pastoral. Same root, totally different.”

It didn’t stop at oral arguments, either. The opinion took a jab, too.

“The protection in FOIA against disclosure of law enforcement information on the ground that it would constitute an unwarranted invasion of personal privacy does not extend to corporations. We trust that AT&T will not take it personally.”

Catch the article, including when Justice Scalia got into the act, too, over at Slate.com.

APROPOS: court artist Art Lien added a few extra flourishes to his work on Monday to accentuate the lighter mood, drawing Justice Scalia as a cat and Chief Justice Roberts with a cob of corn in his hand.

(h/t to Josh Blackman)

Related articles
Filed Under: funny, SCOTUS Tagged With: , , , , , , ,

Life at 133 questions an hour; or, do the Supremes really care what the lawyers think?

March 3, 2011 by Leave a Comment
Official portrait of Supreme Court Justice Cla...

Image via Wikipedia

Curiously, to many, Justice Clarence Thomas rarely asks questions during oral arguments at the Supreme Court.

If at all.

Here’s a run down of his stats, as well as some other interesting numbers related

to questioning by Supreme Court Justices (according to Constitutional Daily):

5 – Years Clarence Thomas has gone without asking a question in the Supreme Court.

133 – Average questions per hour asked by Supreme Court justices.

2.22 – Average questions per minute.

209 – Total questions in Thomas’s favorite movie, Saving Private Ryan.

1.24 – Average questions per minute.

64% - Overall odds of winning a reversal in the Supreme Court.

39% – Odds of winning a reversal if asked 50 questions more than opposing counsel.

18% - Odds of winning a reversal if asked 94 question more than opposing counsel.

1 – Justices that have gone an entire term without asking a question.

And here is my favorite:

0 – Answers the Justices are sincerely interested in.

As it turns out, getting a lot of questions from the Supremes does not mean that they are interested in your reasoning. Quite the contrary. It’s more likely they don’t care.

A few years ago, a second-year law student at Georgetown unlocked the secret to predicting which side would win a case in the Supreme Court based on how the argument went. Her theory has been tested and endorsed by Chief Justice John G. Roberts Jr., and has been confirmed by elaborate studies from teams of professors.

“The bottom line, as simple as it sounds,” said the student, Sarah Levien Shullman, who is now a litigation associate at a law firm in Florida, “is that the party that gets the most questions is likely to lose.”

Not content to let a lowly law student’s theory rest, Judge Roberts–at that time not yet on the Court–did his own study and confirmed the findings. More questions does not equal success. The Justices aren’t talking to the advocate–they’re talking to each other.

The two studies do illuminate something about the nature of questions that Supreme Court justices ask lawyers for each side. In form, they are efforts by the justices to elicit information, clarifications and concessions from the lawyers. In reality, though, these arguments are for the most part attempts by the justices to persuade their colleagues.

“Quite often the judges are debating among themselves and just using the lawyers as a backboard,” Chief Justice Roberts said at Columbia Law School last year.

A third study, this time by empiricists, not lawyers or judges, found that, largely, Shullman and Roberts were right. They looked at 2,000 arguments and more than 200,000 questions. The conclusions were consistent and showed some interesting findings:

  • The relative number of questions asked is indicative. If both sides receive the same number of questions, the likelihood of reversal is 64 percent.
  • “But if the side seeking reversal gets 50 more questions than its adversary, the likelihood of a victory drops to 39 percent. And if that side manages to get the maximum number of extra questions in the study, which was 94, the likelihood of winning drops to 18 percent.”

And that makes Thomas all the more interesting. Because he isn’t asking questions at all. Perhaps he knows the questions don’t matter?

As he has said else where, all the relevant arguments are in the briefings, and if he hasn’t been persuaded by them, oral arguments are not going to persuade him, either.

On the other hand, Justice Thomas prefers a more laid back approach.

“If I invite you to argue your case, I should at least listen to you,” he told a bar association in Richmond, Va., in 2000.

The current court isn’t exactly conducive to that, however, with Justices firing off questions almost faster than they can be answered.  In the 20 years that ended in 1988, Justices asked an average of 133 questions per hour long argument.

(h/t NYT

and Constitutional Daily)

Large Numbers of Law, Week of 2/21/11.

Filed Under: History and People, SCOTUS Tagged With: , , , , , , , ,
«Older Posts