Jeffrey Toobin's Smack Down of the SCOTUS Qs

During my trip to Asia, I read a lot (because it is what I do, as my father-in-law pointed out to me).  I used the time to catch up on my New Yorkers, and I absolutely must highlight Jeffrey Toobin's smack down of the justices' questions concerning the health care act.  In the April 9, 2012, edition, Toobin wrote:

"The key issue in the case is whether congress, in passing the [Affordable Care Act], exceeded its powers under the Commerce Clause of the Constitution, which allows the government to regulate interstate commerce.  Consider, then, this question, posed to [Solicitor General Donald] Verrilli by Justice Anthony M. Kennedy: 'Assume for the moment that this' -- the mandate -- 'is unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce.  If that is so, do you not have a heavy burden of justification?'  Every premise of that question was a misperception." (Emphasis added.)

Ha!  Toobin then goes on to explain that the national government has been involved with the health care market since the 60's since Medicaid and Medicare and that the heavy burden is actually on the other party (the challengers to the law) according to case law.  Toobin then remarks on how previous cases have set up a deference to Congress on such matters but that these justices were taking it upon themselves to become legislators along with justices.  He really seals his article with the zinger, "The awesome, and final, powers of the Justices are best exercised sparingly and with restraint.  Their normal burdens of interpreting laws are heavy enough.  No one expects the Justices to be making health-care policy any more than we expect them to be picking Presidents, which, it may be remembered, is not exactly their strength, either."  ZAP!  Way to go, Toobin!

I'm so glad that such a well-respected SCOTUS writer and critic has really taken the justices to the woodshed for trying to overstep their powers.  Unfortunately, as is so often pointed out, the justices live in a very secluded life and often do not interact with true American humanity or culture.  I hope that for this issue that will greatly save the country's long-term fiscal policies and sustainably provide for the people very much unlike themselves, the justices will step outside their ivory towers when issuing their decision.

The Secret Life of William Rehnquist

Last year, I received the March 2010 ABA Journal, and I carefully set it aside to read the Herman Obermayer's article on William Rehnquist. Over a year later, I have now read the seven page article. The article was taken from Obermayer's book on Rehnquist, and so it reads a little choppily, but it conveys good things to know about our former Chief Justice.

The most interesting, from a legal scholar standpoint, is that Rehnquist "respected tradition and order --- intellectual and social, as well as political and economic. He believed that the proven and established should not be rejected until there are substantial reasons to believe that the new is superior." Knowing this about him, it would be interesting to review his opinions to see where he favored the status quo rather than adopting the suggested new interpretation or application.

Other tidbits included his punctual nature, his intentional addiction to cigarettes, his frugality and insistence on living within his means, and his concern for the Supreme Court, as a revered institution. If you get a chance, I'd recommend reading Obermayer's article for a quick read of Rehnquist anecdotes . . . it transforms Rehnquist from a well-respected jurist to a thoughtful guy who got his jollies by betting on political races.

Justices Being Funny

Ryan Malphurs, PhD, just published his article analyzing the role and prevalence of humor at the US Supreme Court. See http://commlawreview.org/Archives/CLRv10i2/The%20Function%20of%20Laughter%20at%20the%20U.S.%20Supreme%20Court%20CLR%20v10i2.pdf

Of course, there's the usual academic discourse required for all such articles, but I highly recommend skimming it for the quirky references and jokes made by the justices. As he tagged and analyzed the transcripts, it became apparent that Justice Scalia is the one making the vast majority of the jokes. As evidenced by one of my previous posts, I don't really care for Scalia's biting nature, but I will admit that some of his lines are pretty funny. One of the funniest bits was the repeated mistake by several attorneys in several cases of calling Justice Souter "Justice Ginsberg." One is a man, and one is a woman! Ha! Apparently Justice Souter was very gracious in all of the incidents of mistaken identity and gender. It's nice to know that even the justices can appreciate the humor in mistakes.

Clothing for the Courtroom

Today, Christina Brinkley posted an article on the Wall Street Journal's website about the proper clothing for court. See http://online.wsj.com/article/SB10001424052748704554104575435683853964588.html?mod=WSJ_WSJ_US_News_6#articleTabs%3Darticle. In this article, she interviews judges and attorneys and makes her own observations about the proper attire for court. I know this has been a recent issue for the courts in Davidson County, Tennessee. The courts have instituted a dress code policy, and I have witnessed it being enforced. (In fact, one of the defendants I was in court representing was told to go home to put on long pants because he arrived in shorts.) The dress code for the Criminal Court is as follows:

Criminal Court of Davidson County

, Division III

Dress Code Policy

All individuals entering the courtroom shall be dressed appropriately, clean and neat. Dress, which is disturbing and distracting in court is inappropriate. Clothes and appearance must be safe and not disruptive to the judicial process. Remember you are appearing in a court of law.

1. Skirts, skorts, and shorts must reach and extend below the fingertip.

2. All pants must be worn at waist. No sagging or low riding.

3. Undershirts and tank tops, if worn, must be worn with another “cover-up”shirt. Shoulders, backs, chests, and midriffs must be covered.

4. No see-through type or suggestive clothing is to be worn. Undergarments may not be visible.

5. All shirts, with the exception of sweaters, sweatshirts, or vests must be tucked into pants, skirts, or shorts, including athletic jerseys.

6. Appropriate footwear must be worn at all times. No flip-flops or house shoes permitted.

7. Inappropriate head coverings such as bandanas, scarves, sweatbands, hats/caps, do-rags, or hairnets are not to be worn or seen. Hoods on lightweight garments or sweatshirts may not be pulled over the head. Sunglasses shall be removed in court.

8. Clothing that advertises substances (drugs, alcohol, tobacco products) or language or writing that is otherwise inappropriate or offensive (sex, profanity, racial or ethnic slurs, gang-related attire, etc.) may not be worn. Tattoos that display drugs, sex, alcohol, or tobacco products must not be seen at anytime.

9. Clothing that is intentionally torn in inappropriate places is prohibited.

10. For security reasons, chains, spiked accessories, and oversized jewelry are not permissible.

The Court reserves the right to modify this policy as necessary and reserve the right to determine what might be disruptive and unsafe.

If you are dressed in violation of this policy, you will not be permitted in the Division III courtroom or will be requested to leave.

(see http://ccc.nashville.gov/portal/page/portal/ccc/divThreeCourtProcedures/div3DressCode)

I think it is a reflection of the casual nature of our times and the pervasive "I don't care about authority or anything else" attitude that is being reflected in the courtrooms by what people are wearing. A courtroom is probably one of the most formal settings where most of these people will ever be. It is a shame to think that both attorneys, witnesses, and parties to cases think they can appear so casually. Now, I admit that I eschew wearing a suit jacket whenever I can . . . I feel very constricted in them, most of the time they don't fit me properly because I'm six feet tall, etc. However, I know that I need to wear a jacket when I go to court. It's part of the rules to play the "going to court game." I hope that the judges begin taking back the serious nature of their courtrooms and enforcing dress codes for everyone involved. It's one of those things like when you were a kid: if you have to get dressed up, you know it matters. That is the case with court, and we all need to be dressing for the part.

The New Yorker's "After Stevens"

The New Yorker, one of my favorite publications, featured a profile on Justice John Paul Stevens in its March 22, 2010, issue. See http://www.newyorker.com/reporting/2010/03/22/100322fa_fact_toobin. All too often, Supreme Court justices are cloaked in mystery. They are held apart from most of society. Part of that separation is necessary -- it helps them focus on the cases as they are presented. It also reduces any pressure to decide a case on alternative grounds. However, I found it interesting that the justices are isolated not only from society, as a whole, but they are also relatively isolated from each other. Having clerked for an appellate judge, I realize that each judge must make his or her own decision and that discussion is limited between the judges. Most of the time, at least in the chambers I have experienced, it is because the judges are simply too busy writing and editing. Additionally, many of the cases had simple issues that could be addressed easily. When a case presented a particularly troubling issue, it was common for the judges to discuss the different principles once a draft had been circulated. According to Jeffrey Toobin's description of the Supreme Court's protocol, the justices rarely interact, and they prefer to send each other memorandums. This is the court that is deciding cases that have come through the Federal court system and been deemed to have enough merit to be heard by the Supreme Court of the United States. Where is the roundtable? I can't help but think that maybe if the justices interacted a little more in person, there might be fewer catty opinions (See Scalia's contribution to the 2008 case Baze v. Rees, Scalia's dissent in Hamdi v. Rumsfeld, 542 US 507 (2004), and Scalia's dissent in Lawrence v. Texas, 539 U.S. 558 (2003), to name a few). The justices need not agree on all issues, but they should respect one another enough not to launch personal attacks on each other in opinions that are supposed to be addressing Constitutional issues. I think Toobin's article sheds some light on the mystery encircling the justices, and the explanation of how they interact helps explain how some of their opinions are drafted.