Clarence Thomas Speaks!

As long-time denizens of the National Capital region, many of us have become blase about what transpires in our Federal city. It's (extremely) easy to forget how unique our system of government is in the history of the world. The fact that I am about to both celebrate and call a Supreme Court Justice an asshole without repercussion is a right and a gift that would be unthinkable to a vast majority of the humans who have ever lived. (Mostly because they didn't have internet access, but that's not the point.) And while oft-petty arguments  - and current ever-lovin' clusterfuckery - may tend to obscure the lasting genius of our system of checks and balances, seeing that system in direct action is an eye-opening and in many ways awe-inspiring thing.

I was very fortunate yesterday to witness arguments at the Supreme Court in Peugh vs. United States and Maryland v. King. A senior colleague of mine is a long-time friend of the Clerk of the Supreme Court, and invited me and another coworker to the proceedings as a guest of the Clerk. We sat in the first row behind the bar (not that kind of bar, Clarence). Maryland Attorney General Doug Gansler sat down right next to us, taking copious notes in the latter case. The junior of my colleagues is an Englishman, so it struck me as more than a bit interesting when he noted how impressed he was that our system of justice had been sustained for more than 300 years. Since they have that whole Magna Carta thing, and all. America, fuck yeah.

The first semi-surprise of the day was actually hearing Justice (Nah, mine's) Clarence Thomas speak. The legendarily taciturn Thomas is famous for not speaking during arguments before the Court. And true to form, he didn't ask any questions during the day's arguments, but he did offer the Court's majority opinion in Marx vs. General Revenue Corp., a scorcher of a Federal Rule of Civil Procedure (FRCP) dispute.

As impressive as the setting was (and for sheer Federal grandeur, it's hard to beat the scene when the nine Justices walk into the Court and take their seats in front of four massive Corinthian pillars), the thing that struck me the most about the proceedings was the degree of humor and banter on display. Justice Antonin Scalia is a regular Italian father, busting balls and dropping one-liners with regularity. Justices Sonia Sotomayor and Samuel Alito exchanged good-natured jibes about the relative quality of their respective circuit courts. Justice Stephen Breyer played the role of the avuncular grandfather, trying and failing to convince a litigant that he was but a simple caveman Justice who didn't understand this complicated modern legal system.

Meanwhile, Justice Thomas flopped about in his enormous chair in a most impressive display of active listening. He alternately leaned deeply back and stared up at the ceiling, pursing his lips and wrinkling his brow, then shot forward propelled by the chair's springs to a fully upright position. His seated gymnastics were something to behold.

It will come as no surprise to our readers to learn that I'm generally inclined to disagree with Justice Scalia's politics. It may be quite a shock to know that I found him generally likable, in a curmudgeonly way. To be sure, he's an asshole. But he comes across as our kind of asshole - irascible and prone to sarcasm. As she opened of the State's argument in Maryland v. King, Chief Deputy Attorney General Katherine Winfree described some of positive benefits derived from the State's policy of collecting DNA samples for people arrested for certain violent and property crimes. Scalia let her talk for maybe 15 seconds before letting go with both barrels. From the transcript:

MS. WINFREE: Mr. Chief Justice, and may it please the Court: Since 2009, when Maryland began to collect DNA samples from arrestees charged with violent crimes and burglary, there had been 225 matches, 75 prosecutions and 42 convictions, including that of Respondent King.

JUSTICE SCALIA: Well, that's really good. I'll bet you if you conducted a lot of unreasonable searches and seizures, you'd get more convictions, too.
(Laughter.)

JUSTICE SCALIA: That proves absolutely nothing.

This was Ms. Winfree's first-ever argument before the Supreme Court. To her eternal credit, she took Scalia's shot and pressed on. I consider myself a reasonably effective extemporaneous speaker and a relatively accomplished bullshitter, and I'm quite certain I would've wet myself and then passed out. Which brings me to another lasting impression: the quality of the intellects on display, both on the bench and among the attorneys presenting their cases, was staggering. We witnessed highly sophisticated legal arguments crafted, deconstructed, reframed, and debated (the Justices spent at least part of the time arguing with one another via their questions to counsel) on the fly.

We watched the law happen.

At some point in the proceedings, Justice Alito noted that "this is the most important criminal procedure case this Court has had in decades". In essence, the Court must decide whether DNA data can be used much in the same way fingerprints are today, or whether taking a DNA sample from an arrested suspect constitutes unlawful search and seizure. Scalia clearly believes the latter. Justices Elena Kagan and Sotomayor seemed to be concerned with the implications of police overreach. Interestingly, Justice Alito asked a series of questions that indicated he may dissent from fellow conservatives, saying twice that DNA "is the 21st Century fingerprint". And Chief Justice John Roberts was oddly obsessed with DNA left on drinking glasses, though his questions made it clear that his position on the matter was somewhat undetermined. As for me, I know what I think, but I have no idea how that jibes with the Constitution - which, frankly, is why this experience was such a fascinating one for me.

I bought this hat for Zman and Mayhugh

Smarter observers than I expect the Court to uphold Maryland's DNA collection policy, which was supported by an amicus brief filed on behalf of all 50 states and a number of law enforcement organizations. Those same observers also think the Court's normal 5-4 conservative/liberal balance will be significantly upended in this case. The fact that Alito, Breyer, and Kennedy seemed to agree on many elements of the case perhaps presages the result. Still time to get to your local bookmaker if you like what you hear.

If you're a legal scholar, or if you just want some jurisprudence, the recap of Tuesday's arguments is available at SCOTUSblog. 

It's easy to be jaded, and even easier to toss off half-baked partisan-flavored snark (though, in all seriousness, the House GOP makes Jim Zorn look like Vince Lombardi). Having the opportunity to actually watch the Supreme Court in action is impressive from a purely human perspective, and profoundly compelling as an act of government. Those Founding Fathers, man, they knew some shit. Shame they didn't have an opinion on large-magazine automatic weapons.