FIRST ONE @ ONE FIRST

Kagan’s First Opinion; Scalia cites Foreign Law

Posted in Case Reports by Mike Sacks on January 11, 2011

Just a few quick thoughts before I get back to bar studies:

  • Justice Kagan’s first opinion is in the first case she heard on the Supreme Court.  True to tradition, it’s a dog of a case.
  • Justice Scalia is the lone dissent, breaking from the tradition of unanimity for a new justice’s first opinion.  Last year, Justice Thomas concurred in part in Justice Sotomayor’s first opinion.  Does two years away from the tradition mean it’s no longer a tradition?
  • Kagan wasted no time getting into a footnote scuffle with Scalia over the textual relevance of consulting the IRS’s “Collection Financial Standards”:
    • Kagan, fn7 – “Because the dissent appears to misunderstand our use of the Collection Financial Standards, and because it may be important for future cases to  be clear on this point, we emphasize again that the statute does not “incorporat[e]” or otherwise “impor[t]” the IRS’s guidance. Post, at 1, 4 (opinion of SCALIA, J.).  The dissent questions what possible basis except incorporation could justify our consulting  the IRS’s view, post, at 4, n.,  but we think that basis obvious: The IRS creates the National and Local Standards referenced in the statute, revises them as it deems necessary, and uses them every day.  The agency might,therefore, have something insightful and persuasive (albeit not controlling) to say about them.
    • Scalia, fn* – “The Court protests that I misunderstand its use of the Collection Financial Standards.   Its opinion does not, it says, find them to beincorporated  by the Bankruptcy Code; they simply “reinforc[e] our conclusion that . . . a debtor seeking to claim this deduction must makesome loan or lease payments.”  Ante, at 10.  True enough, the opinionsays that the Bankruptcy Code “does not incorporate the IRS’s guidelines,” but it immediately continues that “courts may consult this material in interpreting the National and Local Standards” so long as itis not  “at odds with the  statutory language.”   Ibid.  In the presentcontext, the  real-world difference between finding  the guidelines incorporated  and finding it appropriate to consult them escapes me, since I can imagine no basis for consulting them unless Congress meant them to be consulted, which would mean they are incorporated.  And without incorporation, they  are  at odds  with the statutory language, which otherwise contains no hint that eligibility for a Car Ownership deduction requires anything other than ownership of a car.”
  • Does citing midcentury UK law count as a dreaded citation to foreign law?  Scalia: “The canon against superfluity is not a canon against verbosity.When a thought could have  been expressed more concisely, one  does not always have to cast about for someadditional meaning to the word or phrase that could havebeen dispensed with.  This has always been understood.  A House of Lords opinion holds, for example, that in  the phrase “ ‘in addition to and not in derogation of ’ ” the last part adds nothing but emphasis.  Davies v. Powell Duffryn Associated Collieries, Ltd., [1942] A. C. 601, 607.”

Back to the barstuffs.

Vox Populi: October Rain

Posted in Case Reports, Vox Populi by Mike Sacks on October 5, 2010

I opened my front door this dark morning to a chilly gust of autumn air spitting rain in my face.  “Don’t make a habit of this, Justice Kagan,” I thought to myself.

Mother Nature has not seemed to take kindly to Elena Kagan’s milestones.  On the day of her confirmation vote, a ferocious thunderstorm crashed through Capitol Hill in the time the Senate took to open and close its voting.  Now, on the heels of Washington’s first glorious fall weekend, rainclouds insist on overseeing the entirety of Kagan’s debut week on the bench.

But Mother Nature is not the newest justice’s final arbiter.  As the dreary day broke on One First Street this morning, scores of umbrellas shielded men and women waiting for their opportunity to give Justice Kagan a more hospitable welcome than the elements afforded.

Of all those who showed up to witness the new justice’s historic first day of court, however, one man stood out.

“You’ve got to meet Graham,” said Ryan Malphurs, who arrived shortly before 4am.  A newly-minted Ph.D. in Communications, Malphurs has attended around 60 oral arguments since 2006, traveling from Texas each time, to conduct research for his dissertation on the justices’ power of persuasion at oral argument.  Back again to continue his work as he expands his dissertation into a book, Malphurs introduces his friend.

Graham Blackman-Harris, 44, is the ultimate Court-watcher.  Hailing from Jersey City, NJ, he made his first trip to the Court in 1990.

“I wanted to see Thurgood Marshall on the bench before he retired,” says Blackman-Harris of his first in-person encounter with the Court.  “He looked like a giant.”

Since then, he’s made all but two First Mondays in October.

Forget doctoral students, forget stunt-bloggers, forget lawyers: Blackman-Harris truly embodies the civic passion so evident among the Court’s most ardent followers.  A FedEx Operations Manager and self-professed C-SPAN junkie, he cites 1998’s Clinton v. City of New York as his favorite case because he had followed its issue—the constitutionality of the line-item veto—since the bill’s birth in the Senate.

“I’ve read the Constitution a bajillion times,” he says with a laugh.  “I love it.  Even the three-fifths part”—referring to the infamous clause writing slavery into the founding document—“because the 13th, 14th, and 15th Amendments corrected it.”

After his first trip to the Court, Blackman-Harris began his First Monday tradition in 1991 with the intention of seeing Justice Clarence Thomas’s debut.  The Anita Hill allegations, however, served to delay the Senate’s confirmation of Thomas until mid-October.  He has been luckier in later years, witnessing Justices Ginsburg, Breyer, Sotomayor, Kagan, and Chief Justice Roberts all make their first appearances.

Still, Justice Thomas occupies a large swath of Blackman-Harris’s highlight reel.

A year after Thomas joined the Court, the justice continued to face antagonism in the press.  Blackman-Harris, who, like Thomas, grew up quite close to his grandfather, wrote the justice a letter telling him to “keep his chin up.”

Thomas wrote back with a personal thank you note.  Since then, Blackman-Harris has written every other justice but never received anything more than a form letter in return.

“I don’t believe in a lot of the things Justice Thomas believes in,” says Blackman-Harris, “but I didn’t think it was fair” for the justice to get attacked for his conservative jurisprudence.  “The Constitution, that sweet document, entitles [Thomas] to his beliefs.”

And Blackman-Harris can count himself among the few lucky members of the public to have seen with his own eyes one of the few moments that Justice Thomas has expressed his beliefs in the form of a question during oral argument.

“The whole courtroom just went quiet,” he remembers.  That’s saying something for a place where library-silence is always maintained.

Indeed, he wishes that all Americans could witness moments like that.  To back up his belief, he has written additional rounds of letters to the justices urging them to televise their proceedings.

But it should be apparent by now that for Blackman-Harris, C-SPAN’s “America and the Courts” is simply not enough.  This year, he showed up on a crutch, hobbled by hip problems.  “I was going to crawl if I had to,” he says.

His commitment to his visits for First Mondays and landmark arguments runs deeper than mere interest.  For this man from Jersey, it’s personal.  “This is my Court!” he exclaims as we enter the building.

Graham Blackman-Harris, in his deep devotion to the American idea, proves how inconsequential everyday setbacks like injury or inclement weather really are to the success of the American spirit.  From the Founders scrapping the Articles of Confederation for the Constitution during a stiflingly hot Philadelphia summer to our first African-American President’s inauguration on a frostbitten Washington winter morning, we and our leaders push forward against the elements into each new chapter in our country’s history.

And judging by Justice Kagan’s performance today—poised, comfortable, and perfectly fluid in a bankruptcy case, no less—she and her audience need not regard a trifling turn in the weather as a bad omen for her decades of service to come.

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