I am a native in this world And think in it as a native thinks

Tuesday, January 21, 2014

Mr Chief Justice, and may it please the Court

The two cases in the morning turned out to be completely unexciting. The first dealt with home health care workers in Illinois and collective bargaining; I hadn't read anything about the case and never did figure out from the arguments presented what the issues were.

The second case involved the copyright to the screenplay for Raging Bull, which sounded as though it could be interesting, but turned out to involve lengthy discussions about statutes of limitations versus laches. If I'd had any interest in learning more about laches I would have gone to law school, so I quit trying to follow the argument and spent my time just watching the justices, which was far more entertaining.

Clarence Thomas, for example. He's famous for not asking questions during oral argument, but that doesn't mean he doesn't talk. He had a long conversation with Justice Scalia at one point during the second argument, but his real pal seemed to be Justice Breyer, who sits on his other side. Several times during the day they whispered to each other, and seemed to be cracking jokes as they both laughed. Their chairs recline fairly far back, and both Thomas and Scalia spent a lot of time leaning so far back you could only see the tops of their heads. They also fidgeted the most, and at one point rocked back and forth together for a couple of minutes, like synchronized rocking chairs.

I thought it was interesting that while Chief Justice Roberts seems very calm and magisterial, and the three women on the court all sat up straight all the time, Thomas, Scalia, Alito, Breyer and Kennedy could not sit still. They were constantly rocking and spinning their chairs like hyperactive schoolboys.

Justice Ginsburg seemed very frail. Although her questions were sharp, she spoke very slowly and at times I had trouble understanding her. She has said she has no plans to resign until at least 2016, and she well may be a lot tougher than she appeared, but I was surprised by how fragile she looked.

Finally, after a short lunch break in which I gulped down a yogurt in the surprisingly small and unimpressive cafeteria, Navarette v. California.

This is a Fourth Amendment case, about whether an anonymous tip about reckless driving is enough to justify the police stopping a car if they have followed the car for several miles without observing any threat to public safety. (It almost goes without saying that the truck in question turned out to contain several very large bags of marijuana.)

It was suddenly a very different court. The justices were obviously enjoying the discussion -- even Clarence Thomas sat up straight and watched the lawyers for minutes at a time. Scalia had been the biggest surprise to me in the morning arguments; his questions are often quite entertaining, and he clearly loved this argument. Most of the questions the justices threw at Paul involved how serious the threat would have to be before such a stop was justified -- what if the report was that a little girl had been thrown into the trunk? What if the car contained terrorists with a nuclear weapon on their way to blow up Los Angeles? Basically unanswerable hypotheticals, each one more awful than the previous one, and Paul did an excellent job of steering the discussion back, though Kennedy made a snide joke at his expense. "You get an A for consistency but I'm not sure about common sense."

But I don't think I'm overly biased to say that I thought the arguments presented on the other side, by both the state of California and the Federal Government, were awful. Both of them focused on drunk driving, and seemed to say that it's such a threat to public safety that anything the police want to do to prevent it is by definition reasonable. But this was about reckless driving, not necessarily drunk driving. Practically the same thing, according to them. And what does "reckless" mean? Justice Sotomayor said that her mother thinks she's a reckless driver if she goes one mile an hour above fifty. Everyone knows what "reckless" means, they insisted. What about a false report, someone who just wants to get back at the driver for some reason. Extremely unlikely, they said.

There was one point during Paul's argument when Breyer asked him a couple of questions and obviously really liked his answers. Afterwards I asked him to remind me what Breyer had asked him, and he couldn't remember. You need to have a very deep knowledge of the law and the ability to think very quickly on your feet to go up against Nino and his cohorts; it was almost dizzying how quickly the hour was over.

I'm not doing the arguments justice, but I don't pretend to possess legal expertise, and I'm afraid if I try to explain any more I'll end up getting it all wrong. It was a thrilling experience, and I'd give the win to Paul even if he weren't my friend for going on way too many years to admit to. The picture shows him being interviewed afterwards.

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