Justice Scalia’s juristic tour de force

A hurriedly-compiled list of some of Justice Scalia’s (”AS”) most cogent and bombastic (read benchslap-tastic) points is recounted below. Justice Stevens (”JPL”) wrote a dissent vainly attempting to combat AS on AS’s home court of originalist historical context, and Justice Breyer (”SGB”) authored a dissent devoted to supporting the D.C. (the “District”) gun ban itself. Notably, AS reserves his harshest criticism for JPL (calling him “dead wrong” at one point). See Dist. of Colum. v. Heller, No. 07-290, slip op. at 5-6 n.5 (June 26, 2008).

Part II of the opinion delves into amazingly intricate detail as to what is the meaning of the II Am. AS begins by acknowledging that the II Am. is divided into a prefatory clause (the “well-regulated militia” portion favored by collective right proponents) and an operative clause (the “right of the people” portion favored by individual right proponents). AS makes clear that a prefatory clause may operate to clarify the operative clause, but it cannot “limit or expand the scope of the operative clause.” Id. at 4. He chides JPL for suggesting that such a construction would impermissibly render the prefatory clause without effect, because:

[A] court has no license to make [a clause] do what it was not designed to do. Or to put the point differently, operative provisions should be given effect as operative provisions, and prologues as prologues.

Id. at 4 n.3. Such a construction, AS explains, would illogically “cause the prologue to be used to produce ambiguity rather than just to resolve it.” Id. at 5 n.4.

AS next turns to the individual nature of the right, reminding the dissenting Justices that the other two times the phrase, “right of the people” is used in the Bill of Rights (I & IV Ams.), it is uncontested that such language confers an individual right.

Examining the substance of the right, AS explains:

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications … and the Fourth Amendment applies to modern forms of search, … the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

Id. at 8 (emphasis added) (citations omitted).

AS positively disassembles JPL and the District’s construction of the phrase, “bear Arms:”

In any event, the meaning of “bear arms” that [the District] and [JPL] propose is not even the (sometimes) idiomatic meaning. Rather, they manufacture a hybrid definition, whereby “bear arms” connotes the actual carrying of arms (and therefore is not really an idiom) but only in the service of an organized militia. No dictionary has ever adopted that definition, and we have been apprised of no source that indicates that it carried that meaning at the time of the founding. But it is easy to see why petitioners and the dissent are driven to the hybrid definition. Giving “bear Arms” its idiomatic meaning would cause the protected right to consist of the right to be a soldier or to wage war—an absurdity that no commentator has ever endorsed …. Worse still, the phrase “keep and bear Arms” would be incoherent. The word “Arms” would have two different meanings at once:“weapons” (as the object of “keep”) and (as the object of “bear”) one-half of an idiom. It would be rather like saying “He filled and kicked the bucket” to mean “He filled the bucket and died.” Grotesque.

Id. at 13 (emphasis added) (citations omitted).

AS was apparently less swayed by the amicus brief filed by a group of linguists than was JPL, remarking:

A purposive qualifying phrase that contradicts the word or phrase it modifies is unknown this side of the looking glass (except, apparently, in some courses on Linguistics).

Id. at 15 (emphasis added).

AS is also unmoved by JPL’s creative grammatical interpretation of the II Am.:

[JPL] believes that the unitary meaning of “keep and bear Arms” is established by the [II Am.]’s calling it a “right” (singular) rather than “rights” (plural) …. There is nothing to this.

Id. at 18 (emphasis added). AS adds in a footnote:

Faced with this clear historical usage, [JPL] resorts to the bizarre argument that because the word “to” is not included before “bear” (whereas it is included before “petition” in the First Amendment), the unitary meaning of “to keep and bear” is established …. We have never heard of the proposition that omitting repetition of the “to” causes two verbs with different meanings to become one. A promise “to support and to defend the Constitution ofthe United States” is not a whit different from a promise “to supportand defend the Constitution of the United States.”

Id. at 18 n.14 (emphasis added).

Unsurprisingly, when JPL attempts to broadside AS on his own turf—that of interpreting legislative history—AS is blunt: “[JPL] flatly misreads the historical record.” Id. at 30. I think the most revealing barb aimed at JPL by AS is also the most prescient. Replying to JPL’s insistence that commentary subsequent to the ratification of the II Am. somehow bore upon the understanding of those who ratified it, AS is brilliant (as usual):

Before proceeding, however, we take issue with [JPL]’ equating of these sources with postenactment legislative history, a comparison that betrays a fundamental misunderstanding of a court’s interpretive task …. “Legislative history,” of course, refers to the pre-enactment statements of those who drafted or voted for a law; it is considered persuasive by some, not because they reflect the general understanding of the disputed terms, but because the legislators who heard or read those statements presumably voted with that understanding …. “Postenactment legislative history,” … a deprecatory contradiction in terms, refers to statements of those who drafted or voted for the law that are made after its enactment and hence could have had no effect on the congressional vote.

Id. at 32 (emphasis added). In one fell swoop, AS calls out the jurisprudentially liberal wing of the Court’s central tenet of juristic philosophy. Masterful.

AS easily sweeps aside JPL and the District’s contention that United States v. Miller, 307 U.S. 174 (1939) could be read to support only a militia’s right to bear arms because:

Had the Court believed that the Second Amendment protects only those serving in the militia, it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen …. It is particularly wrongheaded to read Miller for more than what it said, because the case did not even purport to be a thorough examination of the Second Amendment.

Id. at 50 (emphasis added).

One of my favorite passages is a subtle dig at JPL’s professed concern for the judiciary at the expense of the citizenry:

As for the “hundreds of judges,” … who have relied on the view of the Second Amendment [JPL] claims we endorsed in Miller: If so, they overread Miller. And their erroneous reliance upon an uncontested and virtually unreasoned case cannot nullify the reliance of millions of Americans (as our historical analysis has shown) upon the true meaning of the right to keep and bear arms.

Id. at 52, n.24 (emphasis added). Game … set … match.

AS concludes by discounting the faux concern raised by SGB that the majority opinion “leav[es] so many applications of the right to keep and bear arms in doubt,” reminding his colleague that:

[S]ince this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field, any more than … our first in-depth Free Exercise Clause case, left that area in a state of utter certainty.

Id. at 63 (citations omitted).

AS’s second-to-last sentence in the opinion is a skillfully-drafted and subtle rebuttal of the use of the Court by his jurisprudentially liberal colleagues—past and present—to juristically abrogate the Constitution based on modern constructions of ancient legal precepts. In it he concludes that, while the political or cultural viability of the II Am. in modern society:

[I]s perhaps debatable, … what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.

Id. at 64 (emphasis added).

Also of note, AS cites not to just one, but two three of Professor Volokh’s articles in the majority opinion. That is a very rare honor indeed, but also an undisputedly well-deserved one by Professor Volokh. See id at 3, 11 n.8, 24.

Also, one of the cites is to Texas’s very own Review of Law & Politics, congrats.

* * * UPDATE * * *

More quotes from the majority opinion less of the benchslapping variety can be found at SCOTUSBlog.

Thx to the Heller majority, and as always, to Justice Scalia for his intellect and wit

 

Drafting dissents 101

One might as well treat Justice Scalia’s dissent from last week’s majority opinion in Boumediene v. Bush, Nos. 06-1195 & 06-1196 (June 12, 2008) as an addendum to his recent legal writing tome with Bryan Garner, largely and frustratingly unavailable here in Austin.

This is because it illustrates how to write a scathing yet persuasive dissent that will likely be viewed by future Justices and Court observers in much the same jurisprudential light as Justice Jackson’s dissent from the majority opinion in Korematsu v. United States, 323 U.S. 214, 242 (1944) (Jackson, J. dissenting) is now seen, which famously rebuked the majority’s condoning of the internment of U.S. citizens of Japanese descent during WWII.

Justice Scalia’s dissent is masterful both in its tone and its construction. Part I lays out the policy fallout from the decision (i.e., the practical, real-world implications). Part II excoriates the majority’s attempt to brazenly recast the governing precedent, Johnson v. Eisentrager, 339 U.S. 763 (1950). Part III traces the juristic history of the writ of habeas corpus from its codification in 1679 Britain to the present day, and explains why the majority’s decision is such a stunning departure from the entirety of Western common law previously construing and defining the boundaries of the writ.

As far as the text itself, no paraphrasing can do it justice. Below are selected excerpts from the opinon.

The classic first sentence:

Today, for the first time in our Nation’s history, the Court confers a constitutional right to habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war.

Boumediene, slip op. at 1 (Scalia, J. dissenting, joined by Roberts, C.J., Thomas and Alito, J.J.). And then, the meat of Part I:

The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed.

Id. at 2. Talk about “plain language,” you can’t get much plainer than that.

During the 1995 prosecution of Omar Abdel Rahman, federal prosecutors gave the namesof 200 unindicted co-conspirators to the “Blind Sheik’s” defense lawyers; that information was in the hands of Osama Bin Laden within two weeks. In another case, trial testimony revealed to the enemy that the United States had been monitoring their cellular network, whereupon they promptly stopped using it, enabling more of them to evade capture and continue their atrocities.

Id. at 4-5 (citations omitted). After recounting the bromide four of the five-Justice majority in Boumediene previously offered in Hamdan v. Rumsfeld, 548 U.S. 557, 636 (2006) (Breyer, J., concurring in part, joined by Kennedy, Souter, and Ginsburg, J.J.)—namely that “[n]othing prevents the President from returing to Congress to seek the authority [for trial by military commission] he believes necessary”—Justice Scalia curtly observes:

Turns out they were just kidding.

Boumediene, slip op. at 5 (Scalia, J. dissenting, joined by Roberts, C.J., Thomas and Alito, J.J.).

What competence does the Court have to second-guess the judgment of Congress and the President on such a point? None whatever. But the Court blunders in nonetheless. Henceforth, as today’s opinion makes unnervingly clear, how to handle enemy prisonersin this war will ultimately lie with the branch that knows least about the national security concerns that the subject entails.

Id. at 6. Ouch.

It is both irrational and arrogant to say that the answer [to the question of "whether the Constitution confers habeas jurisdiction on federal courtsto decide petitioners’ claims"] must be yes, because otherwise we would not be supreme.

Id. at 18. Calling out his colleagues for their juristic arrogance. And from the final paragraph:

Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause, invoking judicially brainstormed separation of-powers principles to establish a manipulable “functional” test for the extraterritorial reach of habeas corpus (and, no doubt, for the extraterritorial reach of other constitutional protections as well). It blatantly misdescribes important precedents, most conspicuously Justice Jackson’s opinion for the Court in Johnson v. Eisentrager. It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization.

And the most sobering, bold, and blood-chilling line I think I may have ever read in a SCOTUS dissent, the last line cautions:

The Nation will live to regret what the Court has done today.

Let’s hope not.

* * * UPDATE * * *

For a fascinating examination of the Boumediene decision, see Professor John Yoo’s op-ed in this morning’s Wall Street Journal. This article is all the more interesting because Justice Scalia cites in his dissent to a memo Professor Yoo authored while at the Office of Legal Counsel that relied upon the then-accepted interpretation of Eisentrager. See Boumediene, slip op. at 3 (Scalia, J. dissenting, joined by Roberts, C.J., Thomas and Alito, J.J.).

* * * UPDATED UPDATE * * *

It is humorous to note that Justice Scalia “sics” the Justice he has publicly acknowledged as the best writer ever to sit on the Court, Justice Jackson, for the former Justice’s use of the phrase, “cited to [x case],” instead of “cited [x case] to [y court].” Id. at 9. So strong is Justice Scalia’s dislike for this phrasing that he has stated its use makes the author sound “illiterate.”

Thx to Justice Scalia for his incomparable wit and eloquence.

 

Subtle SCOTX benchslapping

Today’s SCOTX orders contain a little gem noted by both the Texas Appellate Law Blog and SCOTX Blog.

In In re Roberts (No. 05‑0362) (orig. proceeding) (per curiam), the Court (J. Johnson not sitting) dryly observes that:

[T]he only harm involved is a 30-day delay. By contrast, this original proceeding has now delayed the case for four years …. By any measure, the benefits to mandamus review of a 30-day extension are outweighed by the detriments.

Kudos to the authoring Justice of this one: very subtle yet very effective.

Thx to the Texas Appellate Law Blog and SCOTX Blog

 

A federal order that would make the Southwest Conference proud

1963 UT Law graduate and U.S. Western District Judge James Nowlin issued a deposition scheduling order yesterday that is one of the best (if not the only) examples of football benchslappery I’ve ever seen.

Thx to Tex Parte Blog and Volokh

 

Writ of please go away

This blog’s newfound buddy, Adam “[Gee, maybe I'm not so] Bulletproof” Reposa, is–unfortunately–back in the news.

Tex Parte Blog just came across the ad mentioned here a few months ago and used quite effectively by the prosecution as an exhibit at Reposa’s trial for demonstrating an alternative hand sign for “contempt.”

Reposa has filed a writ of habeas corpus with the Texas Court of Criminal Appeals complaining his 90-day contempt sentence is excessive. In his writ, Reposa alleges that he was denied due process and due course of law when “Judge Davis declined to follow criminal procedure in ascertaining applicant’s guilt” by allowing the state to introduce evidence of extraneous conduct, i.e., the ad mentioned above from something called Whoopsy magazine, which is apparently distributed in some Austin clubs.

Of course it is.

In a letter sent by one of Reposa’s attorneys to the State Bar’s Advertising Review Committee responding to the committee’s letter that threatened to report Reposa to the State Bar’s grievance committee, Reposa’s counsel justified the ad (presumably with a straight face) by stating:

If one was acquainted with Mr. Reposa when he was 11 years old, then they might connect this parody with him, but otherwise, no casual reader would regard this parody as an advertisement for a specific lawyer.

No, of course not. Except for the fact that the ad repeatedly mentions it references an Austin DWI attorney who has given himself the moniker, “Bulletproof.” It just so happens that there’s only one Austin DWI attorney–or any attorney in the state for that matter–who [in]famously holds himself out with the nickname “Bulletproof.”

Surely no one could connect those disparate dots?

Thx to Tex Parte Blog, Texas Lawyer, and Awesomeness For Awesome’s Sake

 

From $250 million to $0

Ever since I’ve been licensed, I’ve never understood the infatuation with garishly-large jury verdicts. Trial lawyers seem to bray about and tout them as a measure of the validity of the plaintiff’s claims, ignoring that such victories are illusory until confirmed upon appeal, where the arbiters are less easily swayed by factors unrelated to the law and merits of the case.

The only jury verdict I’ve ever considered worth bragging about is Joe Jamail’s $10.53 billion jury award ($7.53 billion in actual damages and $3 billion in punitive damages) on behalf of Pennzoil against Texaco, because it is the only one of such magnitude of which I am aware that was largely upheld on appeal (the trial court’s $3 billion punitive award was reduced to $1 billion). See Texaco, Inc. v. Pennzoil Co., 729 S.W.2d 768, 774, 866 (Tex. App.–Houst. [1st Dist.] 1987, writ ref’d n.r.e.).

Today, the sister court of the Houston appellate court that upheld the Pennzoil verdict smote down another large jury verdict initially touted as a huge win for the plaintiff.

In 2005, a Texas jury awarded a Vioxx plaintiff $24.5 million for mental anguish and economic losses and $229 million in punitive damages, in total, over a quarter-billion dollar verdict.

Whoopee.

Texas’s punitive damage caps automatically lowered the punitive award from $229 million to $26.1 million–quickly lopping off some $200 million of the jury’s award.

Well today, the Fourteenth Court of Appeals ended all the jubilation that may have existed over the once mighty jury verdict, reversing same and rendering judgment that the plaintiff take nothing on legal sufficiency grounds.

From a quarter billion to zero.

Thx to How Appealing, WSJ Law Blog, and the Texas Appellate Law Blog

 

Yet more ponderings on the art of persuading judges

Justice Scalia gave his best interview yet the other day with Brian Lamb on C-SPAN’s series, Q&A.

One of the most interesting segments was when Lamb showed Justice Scalia this clip from the Daily Show castigating his 60 Minutes appearance and his vote in Bush v. Gore, 531 U.S. 98 (2000), and then asked for his reaction.

“I watched [the Daily Show] once and that was enough.”

Justice Scalia elaborated further. First, he reminded John Stewart that President Bush was subsequently re-elected in 2004, so blaming his current occupancy of the office, the ongoing war in Iraq, or anything else derivatively-related in 2008 is specious. Second, he recounted how press studies conducted subsequent to the election found that Vice President Gore would have still lost even if he had never brought the election challenge that eventually resulted in Bush v. Gore, and the votes had been counted the way Gore sought. Third, and “penultimately,” Justice Scalia reiterated that the case only came before SCOTUS because Gore brought the suit, so it was he–not Bush or SCOTUS–who “wanted courts to decide the election.”

What was SCOTUS supposed to do when one of the parties (Bush) alleged the Florida Supreme Court had violated the federal constitution, “turn the case down for not being important enough … hardly.” Last, he also reiterated a point I have made as well that the vote finding the Florida Supreme Court violated the constitution was 7-2, not 5-4.

Justice Scalia also hinted at some future books he’d like to write, most exciting of which would be a sequel to his seminal tome, “A Matter of Interpretation: Federal Courts and the Law.”

The discussion ranged from what items are in his official SCOTUS portrait (a copy of–what else–The Federalist, and Webster’s Second International Dictionary (he doesn’t care for the Third edition)) to whether he still smokes a pipe (which he said was a very useful tool during his confirmation hearings to distract attention from what he was saying).

Thx to Convictions, WestBlog, and WSJ Law Blog

 

And the award for funniest SCOTUS Justice during the October 2007 term goes to …

Justice Scalia by a mile, according to D.C. Dicta.

After reviewing oral argument transcripts from this past term, D.C. Dicta alloted the gallery chortles this way:

Justice Antonin Scalia: 74
Chief Justice John G. Roberts, Jr.: 23
Justice Stephen Breyer: 21
Justice David Souter: 17
Justice Anthony Kennedy: 9
Justice John Paul Stevens: 7
Justice Samuel Alito, Jr.: 4
Justice Ruth Bader Ginsburg: 4
Justice Clarence Thomas: 0

Of course, Justice Thomas‘ lowly rating is less a comment on his sense of humor as much as it is a function of his recalcitrance to make any comment during oral argument, funny or otherwise.

Thx to D.C. Dicta

 

More on how to make your case

Here are several more fascinating interviews with both Justice Scalia and Bryan Garner regarding their new book, Making Your Case: The Art of Persuading Judges.

The first three clips come courtesy of NPR’s own Nina Totenberg, whose interview Justice Scalia and Bryan Garner was featured in three parts on Morning Edition, Day to Day, and All Things Considered.

The second interview is with Bryan Garner alone, courtesty of Thomson Reuters’ blog.

Thx to How Appealing, Res Ipsa, Westblog, and NPR

 

May it please the Court ….

Following up on our earlier discussion of Justice Scalia’s recent interview on 60 Minutes (available here and here, in its entirety), Justice Scalia and Bryan Garner have also given a fascinating audio interview to the ABA Journal’s Richard Brust regarding their newly-published book, Making Your Case: The Art of Persuading Judges.

The ABA Journal has also posted some great excerpts from the book, including the following snippets.

On the right and wrong way to frame the relief you seek:

Wrong:

The undersigned counsel do hereby for and on behalf of their clients, for the reasons explained hereinbelow, respectfully request that this Honorable Court consider and hereby rule that no issues of material fact do exist in the instant controversy, and that a final judgment be entered in favor of the client of the undersigned counsel (sometimes herein referred to as “Defendant” or “Cross-Plaintiff”) and against Plaintiff.

Right:

Johnson requests entry of summary judgment.

On signposting one’s arguments:

There are many such guiding words and phrases: moreover, however (preferably not at the head of a sentence), although, on the other hand, nonetheless, to prove the point, etc. These words and phrases turn the reader’s head, so to speak, in the direction you want the reader to look. Good writers use them abundantly.

Normally, the very best guiding words are mono­syllabic conjunctions: and, but, nor, or, so and yet. Pro­­­fessional writers routinely put them at the head of a sen­tence, and so should you.

On eliminating jargon:

Banish jargon, hackneyed expressions and needless Latin. By “jargon” we mean the words and phrases used almost exclusively by lawyers in place of plain-English words and phrases that express the same thought. Jargon adds nothing but a phony air of expertise. A nexus, for example, is nothing more or less than a link or a connection. And what is the instant case? Does it have anything to do with instant coffee?

* * *

Write normal English. Such as a demonstrative adjective (such action) can almost always be replaced with the good old normal English this or that. And hereinbefore with earlier. And pursuant to with under. The key is to avoid words that would cause people to look at you funny if you used them at a party.

On avoiding clichés:

Hackneyed expressions are verbal formulations that were wonderfully vivid when first used, but whose vividness—through overuse—no longer pleases but bores. Such-and-such a case “and its progeny” is a good example. Or the assertion that an argument is “fatally flawed” or “flies in the face of” something; that your adversary is “painting with a broad brush”; that a claim isn’t “viable”; that the “parameters” of a rule aren’t settled; or that something is true “beyond peradventure of doubt.” The test is: Have you seen the vivid phrase a lot? If so, odds are it’s a cliché.

On avoiding unnessecary Latin phraseology:

Judges are permitted to show off in this fashion, but lawyers must not. And the judge who does not happen to know the obscure Latin phrase you have flaunted will think you a twit.

On the careful use of humor during oral argument, Justice Scalia recounts the unfortunate joke told by Texas assistant AG Jay Floyd during the oral arguments in Roe v. Wade, 410 U.S. 113 (1973), in which he began by remarking:

“Mr. Chief Justice, and may it please the court, it’s an old joke, but when a man argues against two beautiful ladies like this, they’re going to have the last word.” No one laughed. Onlookers said that during an embarrassing silence, Chief Justice Burger scowled at the advocate.

On handling a difficult judge during oral argument:

A noted barrister, F.E. Smith, had argued at some length in an English court when the judge leaned over the bench and said: “I have read your case, Mr. Smith, and I am no wiser than I was when I started.”

To which the barrister replied: “Possibly not, My Lord, but far better informed.” Smith, who later became a famous judge as the Earl of Birkenhead, could reportedly carry off such snappy rejoinders with impunity.

We doubt that, but in any case we don’t recommend that you emulate him.

Thx to the ABA Journal and Volokh

 

Per curiam benchslapping

In these cyber-pages, we’ve chronicled great feats of benchslappery by U.S. District Court Judges Kent and Sparks, Texas Supreme Court Justice Willett, and even documented the contempt-slapping of one particularly self-loving lawyer.

We have yet to come across a federal appellate benchslapping against a litigant–that is, until now. And, as an added bonus, this rebuke came courtesy of a per curiam opinion by three Fifth Circuit judges.

In the circuit court’s decision last week in Hartz v. Administrators of the Tulane Educational Fund, No. 07-30506 slip op. at 13-14 (5th Cir. Apr. 16, 2008 ), the unfortunate yet apparently deserving Mr. Roger Phipps received just such a [dis]honor.

The panel devoted an entire subheading to chiding Mr. Phipps for conduct:

E. Roger Phipps’ Conduct

Finally, and completely separate and apart from the issues raised on appeal, we would be remiss if we did not comment on the conduct of Roger Phipps, counsel for Hartz, during oral argument in this case on Tuesday, March 4, 2008. Phipps’ conduct towards the Court during argument was unprofessional. Even more serious was his admission that during his work on the case (including his preparation for argument), he had not read a key Supreme Court case. His cavalier disregard for his client’s interest and for his obligation to the Court was both troubling and disgraceful.

Accordingly, we are ordering Phipps to provide his client, Hartz, a copy of our opinion immediately after it is released. In order to ensure compliance, we are further directing him to supply our Court with proof of service.

Id. at 13-14. The conduct the circuit court found so objectionable included this exchange between counsel and the panel:

Phipps: . . . so that’s about all I have to say, Your Honor. I don’t have anything other than that. You know, my client lives in Chicago. … She continues to earn a living, and she’s generally unavailable if you call her because she, she’s sort of a traveling doctor.

Judge: That’s not much of thing you come in here and tell us, I guess.

Phipps: Well, my attitude is, the [district court] judge got it right . . . . And as far as whether even Ricks should apply, I don’t think it should.

Judge: What do you do about Morgan?

Phipps: I don’t, I don’t, I don’t know Morgan, Your Honor.

Judge: You don’t know Morgan?

Phipps: Nope.

Judge: You haven’t read it?

Phipps: I try not to read that many cases, your Honor. Ricks is the only one I read. Oh, Ledbetter, I read Ledbetter, and I read that one that they brought up last night. I don’t know if that’s not Ledbetter, I can’t remember the name of it. Ricks is the one that I go by; it’s my North star. Either it applies or it doesn’t apply. I don’t think it applies.

Judge: I must say, Morgan is a case that is directly relevant to this case. And for you representing the Plaintiff to get up here—it’s a Supreme Court case—and say you haven’t read it. Where did they teach you that?

Phipps: They didn’t teach me much, Your Honor.

Judge: At Tulane, is it?

Phipps: Loyola.

Judge: Okay. Well, I must say, that may be an all[-]time first.

Phipps: That’s why I wore a suit today, Your Honor.

Judge: Alright. We’ve got your attitude, anyway.

Id. at 14 n. 4.

At least he didn’t attempt any explanatory hand signals.

Thx to the Legal Profession Blog, Above the Law, and SCOTX Blog

 

Plain language smack-down

The plain-language movement is not isolated to legal circles, journalists are trying to eradicate overly-florid language as well.

Last week, one of The Hill’s senior editors sent the following memo to staffers regarding proper usage of commonly misused words.

From: Hugo Gurdon
To: [REDACTED]
Sent: Thu, 17 Apr 2008 10:42:42
Subject: good usage

I need to repeat some guidelines.

Please use:

“before” rather than “prior to”

“supports” rather than “is supportive of”

“attended” rather than “was in attendance at”

“for” instead of “in favor of”

“lunch” instead of “luncheon”

“senior” or “leading” instead of “top”

Avoid “upcoming” and “potential” and “current.” They are usually
redundant. There are several unhappy examples in today’s paper.

Thanks, Hugo

Agree with most of these except where “before” may be repetitive, I’ll usually substitute “prior to” just to lessen the monotony. Also, to my mind, a “luncheon” connotes a formal lunch–usually accompanied by a speaker of some kind–which is a very different concept than a mere “lunch.”

Thx to FishBowl DC

 

The gift that just keeps on giving …

Just when you thought the Adam “Bulletproof” Reposa saga couldn’t get any more convoluted and strange, it does.

Turns out that Reposa’s former law partner, Bruce Garrison–who I assumed severed ties with Reposa after Reposa was sentenced to ninety days in jail for contempt of court–may have been given the boot by Reposa instead.

Back in November of ‘07, Garrison was charged with six felony counts of tampering with a government record and forgery relating to his alleged forging of several local judges’ signatures on bonds. Now, the best part, one of the judges whose signature Garrison forged was none other Benchslapper in Chief nominee Jan Breland.

That’s right, the same judge before whom Garrison’s former law partner later demonstrated the hand sign for “contempt of court.”

Small wonder she had little patience for Reposa’s antics in light of his former law partner’s demonstrated disregard for Judge Breland’s office. What is more, just days after Garrison was indicted for creatively obtaining judicial orders, he was indicted again for possessing marijuana, and possessing with the intent to deliver a controlled substance.

Apparently the two sets of indictments are related as described by one of the other judges whose signature Garrison forged:

Signing a judge’s name wouldn’t slow a drug addict down a bit[,] … [w]hen you have problems such as Mr. Garrison’s, you need money, and when you’re desperate for money, you’ll steal from your parents, you’ll steal from your friends, you’ll forge judge’s signatures on bonds.

Garrison’s illicit activities have resulted in the indefinite suspension of his law license by the Texas Bar. So, while it is still unclear how the two parted company, it is hard to fathom two lawyers more aptly suited to practice together.

Thx to Awesomeness for Awesome’s Sake, Tex Parte Blog, and KXAN

 

How does this man still have a law license?

Not only that, how did U.T. Law ever admit–much less allow to graduate–this buffoon? The depth and breadth of Adam “Bulletproof” Reposa’s idiocy is even greater than I feared.

* * * WARNING–NSFW language * * *

Can’t imagine why his former law partner, being “directed” by Reposa above, would have jumped at the chance to wind down the partnership once “jailbait” Reposa was thrown in the hoosegow.

Even more disturbing is a piece of evidence introduced at Reposa’s recent trial on contempt charges for making onanistic hand gestures in court. At the hearing, Assistant D.A. Randy Leavitt introduced a copy of a newspaper ad Professor Reposa actually ran here in Austin, entitled DWI Stud, which depicts him having sex with a woman dressed like a police officer and reads:

Check out Austin’s hottest DWI TAPES from cases where people were found NOT GUILTY. There are lots of DWI LAWYERS in town, but how many TAPES do they have? Who can put it down in the courtroom, and make them take it like he wants? BULLETPROOF, THE DWI STUD That’s who…You’d be a fool not to check out this man’s body of work. Watch him perform and then, you decide who you want.

If anyone had any question why his ninety-day sentence was more draconian than some might have expected, look no further than that ad.

Thx to Lowering the Bar and Awesomeness for Awesome’s Sake

 

“The way they used to”

At Wednesday’s oral argument in Kennedy v. Louisiana, No. 07-343, Justices Scalia and Breyer had an amusing exchange.

Justice Breyer fretted that the Court would quickly find itself adjudging the “moral categorization of crime” if it reversed itself after decades of confining capital punishment to homicide crimes.

Justice Scalia dryly retorted, “[j]ust the way they used to.”

Justice Breyer quipped, “[p]erhaps 200 years ago, that’s true.”

In a more substantive exchange, Chief Roberts seemed to distinguish two recent cases banning capital punishment for the mentally retarded and for juveniles, as “qualitatively different” from the distinction at issue in Kennedy between child rape and murder, because the former cases focus on the “culpability of the offender” as opposed to the nature of the offense.

Also of interest, Chief Roberts downplayed the importance of both the judicial branch’s recent capital punishment cases and any social consensus that may be trending away from the death penalty, stating the trend that matters instead is that “more and more states are passing statutes imposing the death penalty in situations that do not result in death.”

Also of note, outgoing Texas Solicitor General and proud papa Ted Cruz argued (the day after the birth of his daughter) that the death penalty should be extended to particularly heinous child-rape crimes because these crimes have gotten worse. “We’re seeing crimes that 20, 30, 40 years ago, people wouldn’t imagine.” Describing Patrick Kennedy as a “300 pound man who violently raped an 8-year-old girl,” Cruz said he was “exquisitely culpable.”

Thx to the WSJ Law Blog

 

The jurisprudential death knell of the “living Constitution”

The SCOTUS plurality decision yesterday in Baze v. Rees, No. 07-5439, slip op. (Apr. 16, 2008 ), while upholding the constitutionality of lethal injection, was almost more notable for the two concurrences that almost single-handedly destroy the modern construct of a “living Constitution.”

First up is Justice Scalia’s straightforward disassembling of Justice Stevens‘ concurrence, which is premised on little more than Justice Stevens’ “own experience.” Baze v. Rees, slip op. at 17 (Stevens, J., concurring).

Echoing the elegant simplicity of Chief Roberts‘ majority opinion in Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, Nos. 05-908 and 05-915, slip op. at 40-41 (June 28, 2007), in which Chief Roberts reasoned “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Justice Scalia marvels at Justice Stevens’ ability to:

[A]dopt the astounding position that a criminal sanction expressly mentioned in the Constitution violates the Constitution.

Baze, slip. op. at 2 (Scalia, J., joined by Thomas, J., concurring).

Justice Scalia reminds Justice Stevens that, despite Justice Stevens’ contention that the “extinction of life … only marginal[ly] contribut[es] to any discernible social or political purposes,” Baze, slip. op. at 14 (Stevens, J., concurring),

[T]he people have determined whether there is adequate contribution to social or public purposes, and it is no business of unelected judges to set that judgment aside.

Baze, slip. op. at 3 (Scalia, J., joined by Thomas, J., concurring).

As to Justice Stevens’ unsupported musings that the infliction of any pain is violative of the Eighth Amendment, Justice Scalia retorts that:

To state this proposition is to refute it.

Id. at 5.

Justice Scalia next eviscerates Justice Stevens’ additional justification for his view that “the enormous costs that death penalty litigation imposes on society,” including the “burden on the courts and the lack of finality for the victim’s families,” Baze, slip. op. at 12, n. 17 (Stevens, J., concurring), explaining:

Those costs, those burdens, and that lack of finality are in large measure the creation of JUSTICE STEVENS and other Justices opposed to the death penalty, who have “encumber[ed] [it] … with unwarranted restrictions neither contained in the text of the Constitution no reflected in two centuries of practice under it”–the product of their policy views “not shared by the vast majority of the American people.”

Baze, slip. op. at 6-7 (Scalia, J., joined by Thomas, J., concurring) (quoting Kansas v. Marsh, 548 U.S. 163, 186 (2006) (Scalia, J., concurring)).

Finally, Justice Scalia leaps upon Justice Stevens’ striking admission that he “relied on my own experience in reaching the conclusion that the imposition of the death penalty” is unconstitutional, Baze, slip. op. at 17 (Stevens, J., concurring), concluding:

Purer expression cannot be found of the principle of rule by judicial fiat[;] … [i]t is JUSTICE STEVENS’ experience that reigns over all.

Baze, slip. op. at 7 (Scalia, J., joined by Thomas, J., concurring).

Next is Justice Thomas‘ masterful historical exposition on the history of the various modes of capital punishment in existence at the time the Framers drafted the Eighth Amendment, which–surprisingly to some–takes Chief Roberts’ plurality decision to task over its holding that a method of execution is violative of the Eighth Amendment if it poses a substantial risk of sever pain that could be significantly reduced by adopting readily available alternative procedures. Baze, slip. op. at 13 (Roberts, C.J., joined by Kennedy and Alito, J.J., announcing the judgment of the Court and writing separately).

Justice Thomas quotes a capital punishment abolitionist who himself admitted:

An unbroken line of interpreters has held it was the original understanding and intent of the framers of the Eighth Amendment … to proscribe as “cruel and unusual” only such modes of execution as compound the simple infliction of death with added cruelties or indignities.

Baze, slip. op. at 9 (Thomas, J., joined by Scalia, J., concurring). As Justice Thomas explains, “[t]he evil the Eighth Amendment targets is intentional infliction of gratuitous pain.” Id.

Justice Thomas’ most damning indictment of the fallacy of evolving Constitutional interpretation is his observation that:

It is not a little ironic–and telling–that lethal injection, hailed just a few years ago as the humane alternative in light of which every other method of execution was deemed an unconstitutional relic of the past, is the subject of today’s challenge. It appears the Constitution is “evolving” even faster than I suspected.

Id. at 12.

The combination of Justice Scalia’s pointed observation that Justice Stevens’ admittedly juristical tetherless opinion somehow concludes that a punishment expressly included in the Constitution is violative of the same document, with Justice Thomas’ recounting of the rapidity with which the “living Constitution” school has evolved the construction of the Eighth Amendment, absolutely tear asunder any jurisprudential foundation for a view of a mutable Constitution.

As Professor Lawrence B. Solum has recently written:

The core of originalism is based on common sense about the meaning of the constitutional text and the nature of law. Once the claims of originalism are pruned of ideological excess and theoretical confusion, the common sense appeal of originalism is difficult to resist. Anti-originalists needed fancy theories to defend the counterintuitive positions to which they were driven by their attempts to reconcile deep tensions between their core commitments. There is nothing fancy or
counterintuitive in the core commitments of semantic originalism.

Lawrence B. Solum, Semantic Originalism (April 16, 2008 ) (unpublished article manuscript), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1120244#PaperDownload.

Thx to Bench Memos, and theVolokh Conspiracy

 

Texas Watch shrinks from scrutiny

We have diligently followed the recent spate of press reports stemming from “research” conducted by Texas Watch purporting to show massive and improper opinion delay at SCOTX. Unlike Texas Watch, we at SMSB do not pretend to be nonpartisan, we are admitted and unabashed fans of SCOTX and its jurisprudence.

That said, we will be the first to acknowledge that SCOTX opinions take an exceedingly long time to issue, and any justification for this less than impressive pace (the Office of Court Administration (OCA)’s estimate for the average time taken to issue an opinion last term from the petition filing was 700 days) is hard to defend in light of SCOTUS’s ability to turn around most–if not every–opinion it issues well within two years from the date of filing (by way of example, the oldest opinion issued thus far during the Court’s present term was handed down 557 days after cert. was filed, and the oldest opinion issued during the Court’s 2006 term took 703 days to issue from cert. filing to opinion issuance). One explanation for this discrepancy is that each SCOTUS Justice has double the amount of law clerks in his chambers than do SCOTX Justices.

Recently, the Executive Director of Texas Watch, Alex Winslow (who is not a lawyer but does possess a bachelor’s degree in government), responded to an excellent op-ed penned by the Court’s Staff Attorney for Public Information that called into question the methodology employed by Texas Watch in conducting its research. Specifically, the Court’s staff attorney pointed to:

One watchdog—using numbers and a methodology it did not explain—calculated the time the court took to dispose of petitions at a few days shy of a year in the 2007 term. The OCA report to the Legislature puts that figure at 158 days—about 40 percent of what the watchdog stated it was.

The organization’s calculations determined the court took an average of 852 days last term to resolve cases from the filing to the opinion. OCA determined that figure was 700 days.

In his op-ed, Mr. Winslow responded to the inaccuracies in his group’s report by stating:

[SCOTX's] taxpayer-funded spokesperson has attempted to assail our methodology and questioned our motives (”Court watchdogs getting facts wrong,” Thursday). Clearly, the [C]ourt is uncomfortable with the public scrutiny it has received in recent months.

* * *

Our research found that it took an average of 28 months for the [C]ourt to resolve a single case. The [C]ourt’s spokesperson claims it was 23 months. We stand by our research as accurate, but no matter how the [C]ourt wants to slice and dice the statistics, the bottom line is that it takes far too long for the [J]ustices to complete their business.

Perhaps Mr. Winslow can indulge us a little more “slic[ing] and dic[ing],” but the data relied upon by the Court’s “taxpayer-funded spokesperson” was not his own, but the OCA’s, which is the state agency statutorily mandated under Chapter 72 of the Texas Government Code to keep accurate statistics regarding the efficiency of the Texas judicial system. See, e.g., TEX. GOV’T CODE ANN. § 72.082 (Vernon 2005). And the “spokesperson” to which Mr. Winslow dismissively refers is a former appellate attorney–something Mr. Winslow has never been–who has long served the Court both ably and faithfully despite being woefully underpaid and misguidedly rooting for an obscure basketball program in the Pacific Northwest.

The OCA has no vested interest in shading the data one way or the other, their only concern and statutory duty is to accurately convey the current statistical state of the Texas courts to the branch of government that funds them, the Texas Legislature. What accountability infrastructure is in place to ensure the accuracy of Mr. Winslow’s data? Oh, that’s right, Mr. Winslow. Or perhaps the one attorney on the Texas Watch staff, who has been licensed all of four [whole] years.

As to the length of time it takes to issue SCOTX opinions in general, while admittedly too long by most any measure, I’ll defer to Justice Scalia’s excellent explanation of the job of an appellate court of last resort: “I’m not about to do justice for your client at the expense of creating injustice in hundreds of other cases that will never come before me that I will never see.” His point–analogized to Texas–is that the citizenry of Texas would likely prefer their Supreme Court Justices to be deliberate and thoughtful in crafting their opinions so as to prevent the inadvertent imposition of injustice in numerous lower court decisions that would subsequently rely upon a quickly-drafted yet necessarily slapdash opinion.

For the third time, we’ll reiterate that we agree that SCOTX take a long time to issue its opinions. But in pointing to this obvious concern, if Texas Watch were truly “nonpartisan” as it claims, it would acknowledge–as the Court’s staff attorney did–that during FY 2007, the Court managed to issue the greatest number of opinions since 2000 and the second highest number of majority opinions since 1999, all while operating with the equivalent of eight justices for almost two years between December 2000 and August 2005 due to Court turnover. It might also point out that, while an average of 700 days pendency is nothing to brag about, that is much better than it has been historically–by over a 1,000 days. See Stayton & Eubank, A Study of Pendency in Texas Civil Litigation, 33 TEX. L. REV. 70, 81 (1954).

If anyone is interested in reviewing the actual, accurate, and vetted data regarding SCOTX’s docket, go here to the OCA’s publication page to view the annual reports going back to 1996.

Thx to SCOTX for continuing to address this concern, and the Texas Appellate Law Blog

 

When briefing to SCOTUS, best to not sound “illiterate”

Texas’s own Bryan Garner has compiled an extraordinary series of interviews he has conducted with eight of the nine sitting SCOTUS Justices (sans Justice Souter) regarding their views on legal writing, appellate advocacy, and the utility of law clerks.

The two Justices who spent the most time discussing legal writing? Chief Justice Roberts and Justice Thomas. The Justices who had the least to say about legal writing? Justices Stevens, Ginsburg, and Alito.

Below, I’ve compiled the Justices’ top suggestions for better writing, as well as the pet peeves that drive some of the Justices mad when they see such errors in the briefing:

* Every Justice condemned the use of legalese. While I agree this approach generally, I do believe there are certain terms of art and certain language that may be disfavored by the modern writer, but that are still invaluable and often more precise than their modern counterparts.

* Almost every Justice interviewed cited Justice Robert Jackson as the best writer the Court has ever had.

Chief Justice Roberts

* Likens trying to read a poorly written brief to hacking through a jungle with a machete.

* Garner notes the fascinating lineage established by Chief Justice Rehnquist clerking for Justice Jackson, and then Chief Justice Roberts clerking for Chief Rehnquist.

* Doesn’t have any “fetishes” about particular language, just values clarity and “some degree of drama” in the briefs he sees.

* Reveals Chief Rehnquist would stop counsel during oral argument if they misused a word.

* Doesn’t think it particularly annoying if counsel mistakenly calls a SCOTUS Justice “Judge,” or a circuit appellate Judge “Justice.” Describes how when he was in private practice, he would always go to the appellate court he was arguing before a day early, observe the oral arguments, and ask the bailiff how the judges preferred to addressed, whether it was “your honor, “justice,” or “judge.” I would take that as a hint to refer to SCOTUS Justices as “Justice” instead of “Judge.”

* If he has a pet peeve, it is probably sentences that contain “which;” just thinks it slows down the pacing of a sentence. Doesn’t feel the same way about “that,” however.

* Advises against telling a Justice during oral argument “I’ll address your question in just a moment,” when asked about, say, point four while discussing point one. Also recommends practitioners practice giving their argument in varying order so that awkward transitions from subsequent points to earlier points can be avoided.

* Recommends counsel give a nearly-finalized copy of the brief to a non-litigator to review to use a litmus test as to whether it is clear enough.

* You should be able to describe the case in simple English to a family member in the span of five minutes. If not, you’re not ready for oral argument.

* When practicing oral argument, make sure you have a colleague who will be the most skeptical of your position serve on the moot court panel.

* Recommends lawyers don’t just use prior briefs as templates for future ones, make sure your brief is accurate and tailored to the case and the panel.

* Almost always added an introduction to his appellate briefs, even when local rules didn’t require it. He notes he always checked with the clerk first.

* Almost every brief he’s read could have been shorter.

* The most effective briefs and oral arguments are ones that highlight the weaknesses in their own argument, instead of attempting to conceal them.

Justice Stevens

* Writes the first drafts of his opinions, with input and help from his law clerks. He does so because he feels doing so forces the Justice to think through and consider the case more fully. I wholeheartedly agree with this point–no matter how many times I’ve read a brief or the record, I don’t really understand a case until I sit down and start writing the brief on it.

* Says that law clerks are largely responsible for today’s longer opinions.

* Views Justice Cardozo as perhaps the best writer ever to sit on the Court.

* Doesn’t mind typographical errors in briefs and finds such errors in almost every brief he reads.

Justice Scalia

* Credited a change in his opinion writing to his father, a linguist who taught romance languages in college, and who scolded Justice Scalia (while he sat on the D.C. Circuit) for using the standard phraseology favored at the time by his court to conclude its opinions with the phrase: “[f]or the foregoing reasons , it is hereby ordered that the judgment of the district court is” either “affirmed” or “reversed.” His father pointed out the proper phrasing of that sentence is the “judgment of the district court be” either affirmed or reversed.

* Thinks that most law review articles are “much too heavily footnoted.”

* Doesn’t like using “instant case” instead of “this case.”

* Frowns upon using “nexus” instead of “connection.” We assume this pet peeve is not directed towards briefs discussing the Nollan “essential nexus” test.

* Dislikes using “[x] informs [y]” to describe, for example, the effect an amendment has on a particular issue.

* Doesn’t like using “and its progeny.”

* Does not like beginning a sentence with “however,” instead of, for example, “[T]hat is not true, however ….” I am a major offender of this convention. Justice Scalia admitted his fondness of beginning a sentence with “but,” and my preference is to use “however,” in place of “but” in such instances.

* Disfavors usage of legalese such as: “in addition” in place of “so,” “notwithstanding” instead of “but,” and “consequently” instead of “so.” Again, I much prefer the legalese alternatives here because I think they convey a more precise concept. If they sound obnoxiously legalistic, so be it, we’re lawyers after all.

* A rule-of-thumb he recommends briefers use to determine whether a certain phrase is too legalistic to use is whether the same phrase, if uttered at a cocktail party, would engender “funny … looks.” I fail this test all the time, both in writing and at cocktail parties.

* Cautions the proper usage of “susceptible to” to indicate vulnerability and “susceptible of” to indicate capacity.

* Recommends hyphenating phrasal adjectives: “purple people-eater” to indicate a people-eater that was purple, and a “purple-people eater” to indicate an eater of purple people.

* Don’t ever state–in response to a question from the Court–”that’s not my case.” One of his biggest pet peeves.

* Do not use the phrase, “cited to [x case],” instead of “cited [x case] to [y court].” He HATES this and thinks it makes the writer sound “illiterate.”

* Reveals he probably discusses the cases with his law clerks more than he does with his fellow Justices.

* Clerks often do the initial draft of his opinions.

* Reviews and revises the opinions at least five times before it goes out the door.

* Oral argument can’t lose a case for a petitioner, but it can win it because a persuasive oral argument can convince a Justice on the fence to come down on one side or the other.

* Only argue your strongest point at oral argument–no matter how many pages in your brief were devoted to other perhaps more elaborate points–because you may never get off your first argued point.

* The only time you know you’re not wasting time in oral argument is when you’re responding to a question.

* The statement of facts should contain all the factual elements that would make a judge sympathetic to your cause without being “too obvious” about it.

* Most important in the statement of the facts is to be rigorously accurate in your record citations.

* Purpose of a reply brief is to reply, not repeat.

* If there are fewer pages, he will pay more attention.

* Has seen cases lost because counsel did not seek certiorari on the precise question that would have won for them.

* Doesn’t–on balance–weigh the statement of facts as heavily in comparison to the rest of the brief as some others might.

* Thinks the summary of the brief is only important if one intends not to read the brief. Hilarious and I agree with this completely. There are other Justices who stated they think the summary is the most important part–to show the reader the point of the brief right up front. However, I think Justice Scalia is absolutely correct that the utility of this section is inversely proportional to whether one reads the brief itself.

* Most crucial is the crafting of the issues: SCOTUS doesn’t care who wins or loses but what the effect of this case will be on hundreds of others: “I’m not about to do justice for your client at the expense of creating injustice in hundreds of other cases that will never come before me that I will never see.” One of the single most insightful observations about appellate practice that is lost on trial lawyers, who too often think an appellate panel cares about what happened at trial, instead of how what happened at trial–if left to stand–will impact the jurisprudence as a whole.

*Cites Justice Jackson’s dissent in Korematsu v. United States, 323 U.S. 214, 242 (1944) (Jackson, J. dissenting) as being a particularly useful example of the value of dissenting and of good writing as well.

Justice Kennedy

* Thinks all good briefs must be: lucid, cogent, succinct, interesting, informative, and convincing. Think that’s about as good of a summary of the ideal brief as you’re ever going to get, and would probably serve as a good yardstick by which to measure your nearly-finished product.

* Reveals that his father would take him out of school to travel with him to trials, where young future-Justice Kennedy would sit at counsel table with his father.

* Thinks that One Day in the Life of Ivan Denisovich by Aleksandr Solzhenitsyn should be required reading for law students. Yeah, I haven’t read that either. Going to pick up a copy of that at Half Price Books this afternoon.

* At oral argument, be respectful of the Court, but not patronizing.

* Reveals that a Justice may be harder on the side they think is right because they might be tasked with writing the opinion and want help from counsel to work through the thorny issues. May also be asking a hard question to convince other colleagues who are wavering.

* Echoes Justice Scalia’s pet peeve of responding to a hypothetical question with the retort, “that’s not this case.”

* The cert. petition must convince the Court that the problem complained of is systemic.

* Doesn’t like adverbs in legal writing (i.e., prefers “with more care,” instead of “more carefully”). Have to confess I use -ly adverbs a lot, will have to see if I am able to configure a sentence without them. Think you can use them skillfully though, and it intimidates me to think of abandoning them altogether.

* Thinks “that” is overused and interrupts the flow of a sentence. Agree with this wholeheartedly.

* Doesn’t like “ize” words (i.e., “incentivize”).

* Doesn’t use commas after prepositional phrases (i.e., “in this case we are called upon to decide”). His best argument with which no can quibble against using commas in this fashion is his quote to the Gettysburg Address, “[f]ourscore and seven years ago our fathers ….”

* Also doesn’t like sentences to begin with, “moreover,” “however,” etc.

* Thinks “focus” is overused.

Justice Thomas

* Values simplicity and clarity in legal writing. Says that in order to achieve that, one must have the patience to go through several drafts of the document and the humility to receive feedback from editors.

* Tells his clerk the genius in writing is having a “ten dollar idea in a five cent sentence,” as opposed to a “five cent idea in a ten dollar sentence.”

* Says the briefs written by Judge Bork and Chief Justice Roberts were some of the best he’s seen.

* Says cramming every conceivable argument into the fifty pages allotted is much less effective than expounding fully on less issues in a clear fashion in just twenty pages.

* Thinks the Court asks too many questions at oral argument. This comes as no surprise.

* As a practical matter, the argument is settled in the briefs.

* Says he doesn’t ask questions at oral argument because there are already “too many” questions asked. Thinks oral argument should be a conversation with the Court, as opposed to the cacophony of questions thrown at counsel currently. He views the opportunity to say one’s peace at our country’s highest court as more important than bombarding counsel with numerous questions.

* Says his mind is almost never changed by oral argument.

* Chief Roberts was the best oral advocates he ever saw argue before the Court.

* Thinks the summary of the argument is the most important part of the brief.

* Doesn’t read the jurisdictional statement or the statement of the facts. Because the court of appeals has already included the facts in its opinion, he prefers to read that. His view is the Court granted cert. on a legal question, and so the focus should be on the legal argument. Have to admit that I used to follow this convention to an extent as well while clerking. I would read the lower court’s recitation of the facts first to find out what happened, and only then read the parties’ versions of the statement of facts to see if they differed from the court’s version. Agree that the only unbiased presentation of the facts is likely going to come from the court below.

* The question presented in the opening briefs should match that posed in the cert. petition. Doing otherwise hurts the advocate’s credibility before the Court.

* Prefers questions to be broken up into shorter sentences as opposed to one laboriously long, “[w]hether [x] … then … [y]” statement. I am not shy of my displeasure with multi-sentence issue statements, but agree with Justice Thomas’s dislike of long issue statements, no matter how many or how few sentences are used.

* Is not fond of public policy, “Brandeis-briefs.” Thinks it takes away from the legal argument.

* Not fond of parentheticals.

* Doesn’t think it matters the political affiliation of a clerk or a Justice (i.e., a “liberal” Justice should have at least one “conservative” clerk, or vice-versa). Does think, however, that it is “tempting fate” to have someone working in your chambers who is “fundamentally at odds” with a Justice’s views on interpretation or construction of either the Constitution or statute at issue.

* His favorite SCOTUS writer is Justice Harlan (first and second on his list by the way). Justice Thomas credits much of his admiration for Justice Harlan as arising from Justice Harlan’s dissent in Plessy v. Ferguson, 163 U.S. 537, 553 (1896) (Harlan, J., dissenting).

Justice Ginsburg

* Thinks that most multi-prong tests devised by courts are really the work of over-eager law clerks.

* Was an admirer of the late U.T. Law professor (who held the Chair named after himself), Charles Alan Wright’s writing.

* Views Chief Marshall and Justice Holmes best the best SCOTUS writers, also admires Justices Brandeis and Jackson.

Justice Breyer

* Always writes at least two drafts of his opinions from scratch before they go out the door.

* Cites Justice Jackson as best SCOTUS writer. Thinks very highly of Justices Cardozo, Holmes, and Brandeis as well.

* At oral argument, make sure you address your opponent’s strongest argument, if nothing else, instead of insisting on regurgitating your strongest point. Absolutely a brilliant point, the Justices know what your strongest points are, and if they are strong, they likely are not concerned by them. An appellate advocate’s task at oral argument is too winnow down his or her opponent’s strongest points.

* Always make an effort to answer every Justice’s questions, because the Justice will likely focus on that issue whether he gets an answer to it or not.

* Prefers thirty-page briefs to fifty-page briefs. Wonders every time he sees a fifty-page brief, “did they really need all fifty pages,” and conversely assumes if one submits a thirty-page brief, “the law must really be on their side.”

Justice Alito

* Answering questions is the most important aspect of oral argument.

Thx to Bryan Garner for conducting these interviews and making them freely accessible to the public, to the eight Justices who were so candid in their relating their insights, and to Convictions

 

This time, his opinion really did turn into an op-ed

We here at the SMSB have noted that Justice Stevens’s opinions can sometimes read more like op-eds than jurisprudential expositions on matters of constitutional import. Hence, his stupefying majority opinion in