For those of us who care deeply about Supreme Court oral argument humor, yesterday was the best day in the history of the world. As has been widely reported, Clarence Thomas spoke for the first time in seven years, telling a joke at the expense of Yale Law School. The key point here is that, although the joke was not itself captured on the official transcript, the "[laughter]" was. For the record, the official laugh line was:
JUSTICE THOMAS: "Well--he did not--"
Just to state the obvious here, Justice Thomas now has a 100% laughter to comment ratio at oral arguments over the past 7 years. In terms of raw statistics, then, this makes him funnier than Louis CK, Sarah Silverman, and Weird Al Yankovic combined.
It wasn't just Thomas getting laughs, though. In the first argument of the day, there were six laughlines, three by Justice Scalia alone. Six for a single argument is almost unheard of. I wasn't there, of course, but it sounds like the morning was more "Night Court" than "Supreme Court." Perhaps it was this night-club atmosphere that inspired Justice Thomas to tell his joke. Indeed, there were four laughs in the second argument--the audience even laughed once at something Justice Alito said, which is about as rare as someone laughing at an episode of "Don't Trust the B--in Apt. 23."
As the Court heads back to business this morning, one wonders whether some of the other justices might feel moved to follow Justice Thomas and break type. I predict that Justice Breyer shows up with one of those Steve Martin arrow through the head things on his giant dome, and that Justice Kagan, well known for her ventriloquism prowess,** poses her questions through a fancy dressed mouse hand puppet.
**Justice Kagan is not in fact known for her ventriloquism prowess
So, the blogosphere and tweetosphere and facebookosphere are all abuzz about how it appears that Christine O'Donnell doesn't really know what the first amendment's religion clauses say. I've watched the footage, and I think that probably she was trying inartfully to make the old point that the First Amendment does not actually include the phrase "separation of church and state." This is true, but irrelevant. The First Amendment says that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The Supreme Court has long interpreted these two clauses (the Free Exercise Clause and the Establishment Clause) to require a certain amount of separation between church and state, with the details of what exactly that means with respect to various specific controversies worked out over time through lots of cases examining particular facts. The First Amendment is very complicated when it comes to religion, it's true, but luckily for Ms. O'Donnell, I have written a book about exactly what the religion clauses mean, in a way that I think even she could understand. After all, Publishers Weekly wrote in its starred review that my "lucid explications of difficult constitutional concepts and the vagaries of Supreme Court rulings are superb, providing readers a deeper understanding of the First Amendment and Supreme Court jurisprudence." So, here's my offer to you, Ms. O'Donnell. If you would like a copy of my book Holy Hullabaloos: A Road Trip to the Battleground of the Church/State Wars, to help you prepare for your next political debate, I would be absolutely delighted to send it to you free of charge, and I'll even pay for postage. Let me know. I'll be checking my email at firstname.lastname@example.org for your message.
The First Amendment's religion clauses raise a lot of hard questions about how much intermingling of church and state is constitutionally acceptable in our religiously diverse nation, but whether the Pledge of Allegiance is constitutional is not one of them. The Pledge, in its current form, in which children of impressionable age declare that they live in "one nation under God," clearly violates the First Amendment. The practice of leading kids in reciting the Pledge violates every one of the Supreme Court's tests for what passes constitutional muster: it endorses a specific and controversial religious viewpoint, coerces non-believing youngsters into declaring their belief in a single god, and undeniably has a religious purpose. When Congress added "under God" into the Pledge in 1954, it did so specifically to proclaim our superiority to those awful godless communists of the Soviet Union.
This is not to say, however, that those of us who believe in church-state separation or who are personally offended by the idea that our nation purportedly exists under the gaze of a single supreme being should be too upset by a recent 2-1 decision of a federal appellate court that the Pledge is constitutional. At least we can look forward to not watching an embarrassing replay of what happened the last time the appeals court heard the question, when nearly the entire House came onto the steps of the Capitol to hold hands and sing "God Bless America" in protest. We also likely don't have to worry that the Supreme Court, which last time around dismissed the case on procedural grounds not present here, will take the case and decide it in a principled fashion, thereby instigating a movement to amend the Constitution to declare us a Christian Nation.
The dissent in the case, penned by Stephen Reinhardt, the most minority-rights-friendly judge remaining on the federal bench, is a judicial masterpiece. In over 130 pages (the length of the opinion might explain why the court waited over two years since oral arguments took place to release the decision), Judge Reinhardt carefully tears apart all of the arguments advanced by the majority and then some. The opinion should be required reading for anyone who cares deeply about the Constitution and the protection it provides minorities in a diverse democracy.
As a couple of local Boston area papers have reported, the board of selectmen in the town of Falmouth, Massachusetts, recently voted to allow one parking space at the Old Silver Beach to be used from 11 a.m. to 3 p.m. each day by a group of local churches. The churches can set up shop in the parking space and talk to people who come and talk to them first, but the churches are not allowed to proselytize to people who just want to come and get some sun and surf.
Understandably, this decision has raised some concern that the town has violated the First Amendment's Establishment Clause, which prohibits the government from making any law "respecting an establishment of religion." This is the part of the Constitution that typically people mean when they talk about "separation of church and state." Well, the use of the prayer parking space, without more, does not itself violate the First Amendment. It's weird--maybe even, as we like to say in Boston, wicked weird--but not unconsitutional. What would be unconstitutional, however, would be if some other religious group--say a Jewish group or a Buddhist group or a Satanist group--asked the town if it could also set up shop in the parking lot, and the town said no.
In Beacon Broadside's first original video, blog editor Jessie Bennett talks with Jay Wexler about a famous church/state hullabaloo in Cambridge, MA: Larkin v. Grendel's Den.
Jay Wexler is the author of Holy Hullabaloos: A Road Trip to the Battlegrounds of the Church/State Wars. He teaches at the Boston University School of Law. He studied religion at the University of Chicago Divinity School and law at Stanford, and worked as a clerk to U.S. Supreme Court justice Ruth Bader Ginsburg. He has published numerous academic articles, and reviews, as well as nearly three dozen short stories and humor pieces in outlets such as Spy and McSweeney's Internet Tendency.
So Monday, Justice Ginsburg issued a stay of a lower court's approval of the whole bankruptcy deal involving Chrysler and the sale of a bunch of its assets to Fiat and whatnot. Though it doesn't happen often, individual justices of the Supreme Court have the authority to grant stays of lower court decisions when they believe that the stay is necessary for the Supreme Court to decide whether to decide the case on the merits.; In other words, if a lower court decision would result in some irreversible action (like the whole Chrysler deal), and if there's a plausible argument that the lower court decision involves some legal issue that might be worthy of Supreme Court review, the adversely affected party might ask a justice to issue an emergency stay of the lower court decision so the whole Court will have some time to decide whether in fact the case is worthy of review. The request goes to the justice who has authority over the geographical area where the case comes from; Justice Ginsburg is the justice in charge of the second circuit area, which includes New York, and so the request went to her. The justice has the option of either just deciding whether to grant the stay him or herself, or alternatively to bring it to the whole Court to decide whether to grant the stay. A decision to grant a stay doesn't mean that the Court will actually go ahead and decide the case on the merits; it just means that the Court thinks the issue is important enough that it needs some time to consider whether to decide the case on the merits.
When I was clerking for Justice Ginsburg in the 1998-1999 term, I had occasion to work on one of these stay requests. It was late in the term--maybe June or something--and as usual I went on a long lunch break. I can't remember whether it was one of those days when I went back to my rat-infested apartment to eat and watch a rerun of Good Times or whether I went to the Au Bon Cafe with friends or what, but I remember coming back after lunch to find this big file on my desk involving a request for an emergency stay in a really famous religion case-- one in which I discuss in Holy Hullabaloos. Now, I'm good at certain things, but one thing I'm not good at is dealing with emergencies. Luckily, there generally aren't any emergencies at the Court. Clerks do a lot of work, but you always know what's coming and you generally have a good amount of time to do it. This allows you to plan your work in a rational fashion and not have to worry that something unexpected is going to come up and bite you in the ass. Well, this file bit me on the ass, and I freaked out. I said something like: "Ahhhh" and wet myself. OK, I didn't wet myself, but I got very nervous and worried and also a little irritated because now I was going to have to do all this work to figure out what the stay application was all about, which meant that I wasn't going to have time to watch more television or work on my unbelieveably horrible novel about a blueberry muffin called "Arrivederci, Loser," the title of which was based on a piece of hate mail that my wife once received from a former nutso friend who thought that my wife had abandoned her for me (she had).
The case in which the stay was requested is too confusing to describe fully here. It basically involved a first amendment Establishment Clause (church/state separation) challenge to the state of New York's decision to grant a community of Satmar Hasidic Jews its own school district so it could administer publicly funded assistance to disabled children in the community. Back in 1994 the Court had invalidated the first version of this arrrangement in the Kiryas Joel v. Grumet case that I discuss in the book. In subsequent years, the state made several attempts to comply with the Court's decision in that case while still giving the Satmars the authority they wanted. The thing I worked on was a request to stay a lower court decision holding the most recent attempt unconstitutional. Luckily for me, Justice Ginsburg, as usual, knew exactly what to do and didn't really much need my help and so it all turned out fine (the Court in fact granted the stay but didn't end up hearing the case, though a few justices thought they should have), but I still sharply remember the feeling of YIKES I had coming back to lunch to find the latest iteration of a famous case in my field of interest sitting on my desk.
So, I thought I'd say a few words here about March Madness, because what else is there really to talk about in March other than March Madness? Can you imagine how crappy the month of March would be if it weren't for March Madness? All these way-too-cold days with no days off anywhere or holidays to break up the monotony? Anyway, I've been a fan of college basketball since I was a kid. Not a huge madman like fan or anything, but generally a fan. As a kid I rooted for BC, since they were the only real player on the college basketball scene, but when I went to law school, I went to a bunch of Stanford games and became a much bigger Stanford fan than a BC fan. I was even at the game in February of 1995 when the Stanford Tree got into an actual, not kidding around fight with Oski the Bear, the Cal mascot, right there on the court in Maples Pavilion. Karen and I were in the stands close to where the struggle took place, and a cop came by and asked the fans in our section if we had seen which mascot had started the fight. It was Oski, that piece of crap.
I don't really know if it was Oski, just in case someone was thinking of bringing a libel suit.
With Christmas just a few days away and New Year's right around the corner, this is the time when each day my family's mailbox fills up with treasured holiday cards from family, friends, and creepy high school classmates we thankfully haven't seen in twenty years. We love the letters with their welcome updates—a vacation in Europe, a promotion to assistant sales manager, a tumor caught just in time! Our favorite part of these cards, however, has always been the picture. This is our chance to see what you all look like after the passage of another year. Has Father Time treated you well, or could you use some help from the plastic surgery clinic down the street? What kinds of shoes do you fancy, and are your knees still as lovely as I remember? Is your face still symmetrical, or has Father Bell's Palsy paid you a little visit?
Sadly, though, more and more the pictures we receive don't contain images of you at all. Instead, we get measly little photographs of your kids and maybe a pet chinchilla in a sweater with snowflakes on it. This would have shocked the Pilgrims, whose primitive stick-figure Christmas cards always depicted the entire family in their dour black frocks. In fact, it wasn't until the industrial revolution that children occasionally started appearing alone on holiday cards—though these images of dirty child laborers look a bit shocking to our delicate modern sensibilities.
Don't get me wrong: We love kids. We love looking at them, playing with them, dangling yarn around and watching them get all tangled up. What adorable little creatures! But it's you we know, you we once pulled all nighters with in college, you whose shoes we puked on during homecoming. We want to know what you look like after all these years, and even more than that, we'd love to discover what ugly dude you ended up marrying.
The Supreme Court has a lovely tradition whereby each Justice’s group of law clerks gets to go out to lunch with each other Justice once during the term. This tradition, which dates back to the sixteenth century, allows the Court’s thirty-six or so law clerks to have at least a little face time with all the Justices. When I was clerking for Justice Ginsburg during the 1998-1999 term, for example, my three co-clerks and I were lucky enough to share Indian food with Justice Breyer, pizza and red wine with Justice Scalia, and classic American with Justice Stevens. The only Justice we didn’t have lunch with was Justice Kennedy, and that was only because on the day of the event, we were notified that we would have to get dressed up to be seen with the Justice in public. Since we generally showed up to work in bathrobes and hair curlers, we were forced to decline the invitation.
When people ask me which Justice seemed the most like a regular, normal person, they often appear surprised when I say that it was, without any doubt, Justice Thomas. Not that “Most Normal Supreme Court Justice” is a particularly difficult title to achieve, but during our lunch, Justice Thomas impressed me as being a totally friendly and incredibly down-to-earth guy, and I say this not just because he laughed at my “Why- did- the- guy- get- fired- from- the- orange- juice- factory?- Because- he- couldn’t- concentrate” joke.
Obviously my time up close with Justice Thomas was extremely limited, but I did get the sense that he cared a great deal about the people who he worked with at the Court. He’s the guy, for example, who supposedly knows the name of everyone who works at the Court, from the cafeteria workers to the Curator’s assistant to the security guards. At the time of our lunch, one of my co-clerks was having a family problem that Justice Thomas knew something about. The next day, I was working on some memo or something when the door to the chambers opened. It was Justice Thomas with a book that he wanted my co-clerk to have. It’s hard to communicate how unusual it is for a Justice to just pop into the chambers of another Justice, much less anywhere near where the clerks sit. Perhaps it’s some evidence of how startling it was that, when I saw Justice Thomas suddenly standing in front of my desk, I immediately projectile vomited all over my memorandum.
It has been widely reported recently that Justice Thomas has not asked
a question from the bench in over two years. This fact is about as
interesting as one of my hangnails, and somewhat less important. Many
in the blogosphere and elsewhere have taken Justice Thomas’s silence as
a sign that he is not engaged or is not fully doing his job. For some
it’s evidence to support their already existing views that Justice
Thomas is a bad judge or a bad person. These criticisms are unfair.
Oral argument may play an important role in the lower courts, where it
can help judges figure out what’s going on in a case with messy facts,
but in the Supreme Court, where cases are only heard if they clearly
present a discrete legal issue, oral argument simply isn’t a big deal. More than anything, the Justices use the time to argue with each other,
albeit indirectly, through questions posed to the lawyers. This will
probably come as a huge surprise to many readers out there, but some
lawyers, even judges, like to talk just to hear themselves talk.
Justice Thomas has indicated that he sees no reason to talk for this
purpose, and I have to say I kind of admire him for it.
Please don’t get me wrong. I wish Clarence Thomas was not on the
Supreme Court. Justice Thomas’s jurisprudence threatens to send the
nation back to the middle ages. In my own field of study, church-state
law, Justice Thomas has said that the First Amendment’s “Establishment
Clause” does not apply to state and local governments. This means that states and localities would be free to promote religion by, for instance, putting up huge crosses on public property, teaching creationism, and leading school prayers. Probably they could even set up their own
official religions. Just thinking about this makes me want to cry.
In other areas of law, from the Fourth Amendment’s prohibition on
unreasonable searches to the Eighth Amendment’s ban on cruel and
unusual punishment to the breadth of executive power, Justice Thomas’s
crabbed approach to constitutional interpretation has similarly
resulted in the abuse of individual rights. This is plenty reason
enough to lament Justice Thomas’s presence on the bench (and, sweet
mother of God, to vote Democrat in November), without resorting to
criticisms about his silence there. Indeed, given Justice Thomas’s
reactionary views, liberals should probably be happy that he doesn’t
speak during oral argument. If only somehow he could be persuaded to
write as few opinions as he asks questions, now that would be something
worth talking about.