Thanks to Geof Stone, University of Chicago law professor, for pointing out an unintentional omission in my post last week on sarcasm and the Supreme Court: examples of the Court’s sarcasm. I realized that this trend is so glaring in my mind, I assumed it was in others’. Oops. So, here’s my amendment with cites and explanation.
As an enthusiastic listener to NPR’s legal correspondent Nina Totenberg, who brings the Supreme Court to life by reading excerpts from oral arguments, I’ve noticed an increased use of sarcastic tones by Totenberg when quoting some of the Justices. It isn’t Ms. Totenberg’s sarcasm. It’s theirs. And that’s what prompted me to write Supreme Court: No Place for Sarcasm.
And then on This American Life in a piece called Take the Money and Run for Office, Senator John McCain also mentioned sarcasm on the Court as he described his experience listening to oral arguments in the Citizens United case:
First, I was outraged…the questions that were asked, the naiveté of the questions that were asked, the arrogance of the questions was just stunning, particularly Scalia, with his sarcasm.
And then McCain imitated Justice Scalia’s sarcastic attitude. You can listen to it here.
As it turns out, I’m not the first to discuss the use of sarcasm on the Court or to question its appropriateness there. Erwin Chemerensky, Dean of the University of California Irvine Law School, wrote a thorough review of Scalia’s penchant for sarcasm back in 2000, making the case as it concerned law students and attorneys:
Justice Scalia’s opinions are distinctive because of his frequent sarcasm and pointed attacks on his colleagues. No doubt, this makes his opinions among the most interesting to read and teach….But I am greatly distressed by the message that his sarcasm and his attacks on other justices transmit to law students and to attorneys about how it is appropriate to speak and talk to one another in judicial settings.
But the story that provoked me to write my blog post was Totenberg’s March 20th report on the Court’s hearing of two cases about life without parole sentences for minors. Here is some of the exchange, according to Totenberg:
Justice Antonin Scalia noted that 39 states have laws that make life without parole the punishment for murder, even for juveniles. He asked whether he should “just consult my own preference” instead of “what seems to be a consensus of the American people?”
[Attorney] Stevenson contended that in fact, most states have not agreed to subject 14-year-olds to life without parole. Only 18 states have actually imposed the penalty on those 14 and younger. Moreover, he said, state legislatures pass laws that allow juveniles to be tried as adults and then the juveniles are automatically subject to the same penalty as adults — in these cases, mandatory term of life without parole for murder.
Justice Samuel Alito questioned Stevenson’s statement that state legislatures did not know what they were doing.
“If you think these legislators don’t understand what their laws provide, why don’t you contact them?” he asked sarcastically. (My emphasis.)
The final straw for me here was Justice Alito’s snarky remark. It’s one thing for a single petulant personality to bring his invective to the Court (just like some bratty nephew at the holidays, we all somehow put up with Justice Scalia), but it’s quite another to think this is becoming acceptable practice across the board.
The Supreme Court, as I said, depends on its credibility for its authority. Justice Breyer (in a talk he gave at the Aspen Ideas Festival last summer, which I wrote about here) reminded us that the authority of the Supreme Court took some 100 years or more to establish in this country. And although by this point it is indeed well-established, it’s not an impossibility for that position to be challenged in the future – especially if the Court continues to make extreme decisions such as Bush v. Gore and to undermine both its credibility and its position of power with behavior that is so clearly beneath it.