The Texas litigation consultant studied all the notations of laughter during the court’s 2006-2007 term, and discovered a few more himself while listening to tapes.
He found that fewer than half the comments were directed to the lawyer in front of the justices, or even to the argument he or she was making.
The rest were self-referential, or about the court, or about some third party, such as Congress or government in general.
In scholarly fashion, Malphurs – who studied the court for his communications dissertation at Texas A&M – looked for deeper meaning:
“The justices’ laughter diminishes formal control and power barriers, facilitating communication amongst themselves, between the justices and advocates, and with the audience members as well.”
I met Ryan on the Supreme Court sidewalk before the first day of the term, where he gave me a preview of this study as we paced in front of the Court trying to keep warm. He stayed in line for the rest of that first week and later, in a post for F1@1F, reflected on his night with the crowd for Snyder v. Phelps.
Congratulations on the great press, Dr. Malphurs, and keep up the great work!
UPDATE (1/24/11): Adam Liptak of the New York Times gives Malphurs’s study a look.
Bob Barnes of the Washington Post revisits the possibility of rotating retired justices onto the Court when an active one recuses him- or herself:
Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) is pondering whether a change is needed. He’s considering legislation that would allow a retired member of the Supreme Court to replace a justice who has recused himself — or herself — in a particular case.
This would avoid the court potentially splitting 4 to 4 on a case and, Leahy hopes, encourage justices to recuse themselves more often when there is an appearance of partiality.
This idea was first publicized by the National Law Journal soon after Justice Stevens, upon announcing his retirement, suggested the idea to Leahy. I wrote then about the possible political motivations and jurisprudential consequences:
This seems to me a politically loaded suggestion. There has already been much talk about Kagan’s potentially high recusal rate over the next few terms as the Court continues to hear cases that her office had briefed in the lower courts. On divisive issues, Kagan’s absence would lead to 5-3 victories for conservatives or ideological deadlocks at 4-4.
I cannot imagine that the GOP members of the Judiciary Committee will agree to this plan. If Kagan does not recuse herself on a case in which a conservative may be obligated to do so, two of the substitutes–Souter and Stevens–would be a fifth vote on the left. It is not inconceivable that these two retired ringers could cut away at the Roberts Court’s business-friendly precedents, as the Court sometimes goes shorthanded on cases concerning corporations in which justices may own stock.
O’Connor, too, exited the Court to the left of Anthony Kennedy on campaign finance, church-and-state, abortion, andaffirmative action cases – all issues that have been cut back since Alito succeeded her. However, recusals on these cases are less likely. That is, unless some advocacy group somehow finds a not-too-distant relative of Justice Scalia who is an abortion doctor in Nebraska that is willing to be a named plaintiff in a federal case.
Barnes’s article today echoes my sentiments:
at some point, theory steps aside and reality sets in. “It’s an interesting idea,” said James Sample, a Hofstra law professor who has specialized in studying judicial recusals. “The challenge is that it’s so difficult to divorce discussion of the proposal from the individual justices who might end up replacing the recused justices.”
In other words, the bench currently consists of Stevens, O’Connor and retired justice David H. Souter, all of whom are to the left of the court’s dominant conservatives.
It is as unlikely to think Republicans would think it is a good idea to put them back in the lineup, Sample said, as it is to think Leahy would be as keen on the idea if the available replacements were, say, former chief justices William H. Rehnquist or Warren E. Burger.
As I continue to toil away on some outside writing projects (you’ll find out about them soon…), give a read to this Washington Post op/ed by David Lat and Kashmir Hill of Above the Law.
Entitled, “Justice Clarence Thomas seems bored. Why doesn’t he run for president in 2012?”, Lat and Hill go on to make an argument that should make any Court watcher and student of law and politics wonder, “Why haven’t I thought of this before?” That is no slight – this article is refreshingly provocative and plausible. There’s no better kind of commentary. Here’s a sample:
The Republican Party is in disarray, with no clear message — as shown in last week’s primaries — and with no obvious candidate to challenge President Obama in 2012. Thomas could be the GOP’s new standard-bearer. He has enviable name recognition, both as a long-serving justice and as the author of the bestselling 2007 autobiography “My Grandfather’s Son.” And he has already survived the nasty political attacks that marked his 1991 confirmation hearings.
No matter what one thinks of Justice Thomas, I think there’s a little something for everyone in Lat and Hill’s proposal.
He’s too detached and cerebral. Too deferential to Congress. Too willing to compromise. And he’s too much of a law professor and not enough of a commander in chief, as Sarah Palin recently admonished.
These are some of the qualities for which the president, rightly or wrongly, is criticized. They are also the qualities that make him well suited for another steady job on the federal payroll: Barack Obama, Supreme Court justice.
Rosen continues with a couple of his fantasy scenarios:
It would be unusual, but not difficult, for Obama to get himself on the Supreme Court. He could nominate himself to replace John Paul Stevens, for example, or he could gamble and promise Hillary Rodham Clinton that he won’t run for reelection in 2012 in exchange for a pledge of appointment to the next vacancy.
I believe my fun with the future is less fantastical, at least in terms of a Justice Obama timeline. As I implied in one of my very first F1@1F posts, should there be a Democratic President at the dawn of the next decade, Obama is more likely to succeed Scalia than he is to swap himself out for Ginsburg during his own presidency.
Even if my own peyote prediction trumps Rosen’s silly scenarios, the rest of Rosen’s column remains quite compelling. He invokes Justice Brandeis as the prototype for a Justice Obama:
Brandeis, who served on the high court from 1916 to 1939, offers a good model for Obama. Known as “the people’s lawyer,” he was an economic populist, criticizing the “curse of bigness” that led oligarchs such as J.P. Morgan to threaten the entire financial system by taking reckless risks with “other people’s money” and then to demand government bailouts after their bad bets. But Brandeis opposed bigness in government as well as in the private sector, and during the New Deal he preferred regulations that prevented companies from getting too large in the first place — such as the Glass-Steagall Act separating commercial from investment banking — rather than the creation of huge federal bureaucracies to regulate the economy.
On the high court, Brandeis generally stood for judicial restraint, denouncing conservatives for striking down progressive state economic regulations. But he also believed fiercely in the First Amendment and freedom from unreasonable searches. Both a pragmatist and a civil libertarian, he provides a judicial ideal for Obama, whose record resembles his in many respects.
Besides Obama’s judicial qualities listed by Rosen, Obama also has an ambitious vision of his place in history. But he also knows that making history is all in the timing, and he won’t make history by simply becoming a Justice. Even if he’d be the first Justice from Hawaii, he wouldn’t be the first Harvard Law graduate, University of Chicago professor, Senator, African–American, or President to turn up on the Court.
But he could be the momentous fifth vote to turn the Court back to the left. He won’t make that history if he replaces Stevens or Ginsburg. And don’t think Obama doesn’t know that–if Obama has his eye on the Court, of course.
Americans of both parties overwhelmingly oppose a Supreme Court ruling that allows corporations and unions to spend as much as they want on political campaigns, and most favor new limits on such spending, according to a new Washington Post-ABC News poll.
Eight in 10 poll respondents say they oppose the high court’s Jan. 21 decision to allow unfettered corporate political spending, with 65 percent “strongly” opposed. Nearly as many backed congressional action to curb the ruling, with 72 percent in favor of reinstating limits.
The poll reveals relatively little difference of opinion on the issue among Democrats (85 percent opposed to the ruling), Republicans (76 percent) and independents (81 percent).
The results suggest a strong reservoir of bipartisan support on the issue for President Obama and congressional Democrats, who are in the midst of crafting legislation aimed at limiting the impact of the high court’s decision. Likely proposals include banning participation in U.S. elections by government contractors, bank bailout recipients or companies with more than 20 percent foreign ownership.
But Senate Minority Leader Mitch McConnell (Ky.) and other Republican lawmakers have praised the ruling as a victory for free speech and have signaled their intent to oppose any legislation intended to blunt the impact of the court’s decision.
This massive disagreement with the Court’s decision and the partisan disconnect in Congress with the voting public show two things:
- The Court wisely kicked its Citizens United decision into this term, which has no other fever-pitched case of public concern on its docket. One deeply unpopular decision a term will allow the Roberts Court as currently constituted to steer right against today’s left-leaning political winds without spending all its political capital and destroying its institutional legitimacy.
- Republican voters haven’t gotten the memo…yet. If Democratic responses move beyond a State of the Union slap and some wonky Congressional bills, and into campaign fodder this summer and fall, the GOP will get the message out to its voters that disagreeing with Citizens United is for liberals–and these days, conservatives can be thrown out of the Republican party for agreeing with liberals on issues of great impact. Campaign finance is an issue of great impact, but campaign finance legislation makes peoples’ eyes glass over. As such, expect some terse, lockstep messaging–the GOP’s specialty when communicating to its constituency–coming from on high. “Corporate Personhood” and “Money is Speech” can and likely will be enthusiastically absorbed into the Republican voters’ canon within months. Do not count on this “strong reservoir” of bipartisan disagreement with the Court’s decision to last.
A few months back, Washington Post ran a contest called, “America’s Next Great Pundit.” I entered. But rather than do as prompted and write about the issues currently before us, I decided to have fun with the future. I got rejected.
Take some of the cast of characters with a grain of salt. But as to the other characters, turn over your hourglass and pay heed to how the grain of salt turns into a sturdy pile of sand.
Justice Antonin Scalia, the 85-year-old senior member of the Supreme Court, held a press conference yesterday to announce his retirement. Stooped over and weakened by three heart-attacks, he symbolized the conservative Court’s decline.
The iconic jurist had hoped to retire upon the election of Senator Eric Cantor (R-Va) to the Presidency. The votes, however, weren’t there.
“Now I know how [former Justice] Bill Brennan felt,” the Justice chuckled, alluding to the liberal lion Scalia often battled during his early years on the Court. Thirty years ago, the elderly Brennan suffered a stroke and promptly sent his letter of resignation to a President on the opposite end of the political spectrum.
Sources close to President Cory Booker report that he will make good on the campaign promise to nominate Barack Obama to the first vacancy on the Supreme Court. Booker’s declaration relegated his Democratic Primary competitors to meek “me too’s” and helped catapult the former New Jersey Governor over incumbent President Biden at the polls.
At a dinner in Tehran with former Iranian President Mousavi commemorating the tenth anniversary of the fall of Ayatollah Khamenei, Obama told reporters that after five years of democracy promotion abroad, he’s ready to return to Washington for a new challenge should Booker nominate him.
“Iran is our ally and has helped make Iraq and Afghanistan the stable states they are today. Global nukes are approaching zero. Israel and Palestine are partners in peace. We’ve gotten a lot done. But look, the law is my first love. And I’ve got a legacy to protect back home.”
But those hoping Obama will unite with Justice Diane Wood, his second Court appointment, to reconstitute the long-lost, full-throated liberal wing of the court will be disappointed.
“My health care legislation has been turned into a money pit. My Wall Street regulations have turned into financial straitjackets. After Justice Kennedy retired, my economic-based affirmative action reforms and abortion-control legislation have been in danger.”
Cantor’s quixotic campaign and its landslide defeat finally nailed the coffin on Scalia’s brand of conservatism, but the contested Democratic nomination points to Booker and Obama as the new vanguard of restraint against the Biden administration’s excesses.
If Obama can get his Tehran comments past the progressive members of the Senate Judiciary Committee, Scalia can satisfy himself with the irony that the liberal messiah of 2008 will be resurrected as the figurehead of new conservatism.