no. (roses_rejoice) wrote,

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When Justices Attack (part III)

Wednesday morning, continued from last S Ct post...

9:50 am: The usual right-wing mafia is wandering around the courtroom. I see Ken Starr (who I heard is repping Newdow's ex-gf), Jay Sekulow (one of the best oral advocates I've ever heard argue) and some guy named I think Brent or Brett (this was Brett Kavanaugh) who clerked for Kosinski and later for a Supreme. For some reason, Ken and Jay seem to turn up at every oral arg I attend. I don't know whether I happen to pick the cases they're involved with, or whether they just make the scene down there frequently, or whether they're more recognizable than a lot of the other advocates.

10:00 am: Here come da justices! After everybody gets Oyezed and sat, a bunch of attys have to get sworn into the S Ct bar. As soon as I rack up the required 3 years, that's gonna be me so I too can come in a suit and go in the special lawyers' door and sit in the special lawyers' seats. No more camping. Next we have to listen to Souter read the opinion of the Court in some dull telecomms admin law case involving the correct interpretation of the word "any" in a statute. I can't believe I once thought of going into telecomms law. The laws are so convoluted, I think the FCC should throw out the whole code and start over again from scratch.

10:10 am: Time for the first argument. Before we get to the main event of Newdow's appearance, we have to sit through a more routine First Amendment case involving whether some adult bookstore can get prompt judicial review for a zoning variance denial. I almost nod off about four separate times during this one, and manage to stop myself each time. I'm terrified that I'll fall asleep and snore and get thrown out by the steely-eyed marshals patrolling the aisles. Thomas as usual looks like he's dozing off in his chair. I wonder if he ever snores. I heard in the line that he's spoken 4 times in 15 years. I know one was a civil rights case and one was an election law case that my coworker happened to attend. I wonder what the other two times were. I have a feeling he won't be talking today (I'm right).

None of the advocates for this case are particularly skilled, and the one appearing for the bookstore bumbles and makes the mistake of discussing issues outside the one presented for review, which is guaranteed to raise a fuss from the Justices and does. Scalia asks a predictably snotty, sarcastic question as to why someone running an adult bookstore should get a faster review than, say, someone seeking a variance to add a bedroom to his house for a small child. I've always found Scalia to be funny as hell in a punky sort of way even when I don't agree with him (and I'm sure that the advocate who has to answer his questions doesn't find him amusing in the least). Maybe I just have too much experience with old Catholic relatives. It's like listening to Uncle Tony expound on the decline of American morality at the dinner table while you snicker quietly behind your coffee cup.

The bumbly attorney is starting to lose control of his movie up there. My mom once saw three cats sitting in a circle with a mouse running around in the middle, and told me how one cat would put a paw down on the mouse, and then after a minute let it go, and the mouse would run around confused, and another cat would paw at it. That's what the Justices are doing with this guy, seems like, playing cat and mouse with him. He gets out a sentence or two and a Justice will interrupt and WHAP! After a question or two, the Justice will "let him go", and he'll make a couple more points and another Justice pounces, WHAP! Scalia and Rehnquist usually do this sort of thing, but now about six Justices are taking turns whacking on this dude and I'm starting to feel sorry for him. I'm sure he's glad when it's over, although I have a feeling the adult bookstore never had much of a chance.

11:10 am: Having gotten the opening acts out of the way, it's time for the main event. Scalia disappears from the bench. First up is some guy named Cassidy who I can't place who is repping the school district. I spend a few minutes wondering if he's the Cassidy I met once, from the firm of Miller, Cassidy (now defunct) and decide he's not because that guy had a Southern accent (and was probably a better advocate). He pretty much argues standing the whole time. His points are good, albeit boring, but the S Ct is likely not going to get rid of this case entirely on standing. The standing in this case is truly hokey from a federalist standpoint, but the Court doesn't want to look chickenshit and plus they're not going to let this one go by without reaching the "under God" issue and getting a few words on the record. I suspect someone will dissent or concur and make a big point out of the standing. I also suspect they'll try to frame the opinion so they don't get a lot more cases of this nature brought by disgruntled ex-whatevers.

Next up is someone from the SG's office who I later learn is the big guy, Ted Olson hisownself. (I met the two previous SG's, but I've never met Ted Olson though I heard a lot about him in law school and how he was trying to expand executive power to make up for a crushing defeat in some case years ago. And of course then his wife died on the 9/11 flight so we heard even more about him. ) Olson makes a good common sense point that several Justices later come back to, about how if Newdow really cared that much about his kid he wouldn't drag her into the middle of this circus. I have to agree.

Finally it's time for Newdow. He starts out all Clarence-Darrow-monkey-trial crusader stylee. It wakes everybody up but his lack of deference to the court is pretty striking. He's there to put on a show and get his words on the record, not to win the case. I think the Justices realize that and also seem to be cutting him a bit of a break for being pro se, so they're not as mean as they could be. But I'm not seeing law made, I'm seeing show made. I'm really sorry Scalia shot his mouth off and had to recuse himself, because it would be way fun to watch him go toe to toe with this guy.

Newdow's argument is not bad for a guy arguing pro se but you can tell he's not an ace at this. First of all, he's getting way too excited up there. Washington appellate-stylee is super-calm. (In fact the students from my old school, who are trained to argue that way on the premise that they actually *will* be arguing in front of real live federal appellate courts like I and a bunch of my classmates have done, tend to lose moot court competitions in other parts of the country where the dumb hick competition judges expect to see you getting all excited and pounding the podium. If you pounded the podium in the S Ct you'd probably get a reprimand.) Given that this guy has been through about ten moot courts at least, I'm sure he was even more of a ball of fire to start and has had about 50% of it trounced out of him and it's still too much.

Second of all, Newdow's standing argument is way convoluted. He seems to be claiming injury to his daughter and through her to him. The problem is, he's not the custodial parent and the one who is says that "under God" is cool, so the extension of standing to Newdow seems bizarre. Third, he keeps screwing up and saying his daughter is "required" to say the Pledge instead of saying "coerced", and getting corrected by Justices who say, "No, she is not REQUIRED to say it!" There is case law that says kids can't be required to say the Pledge, but that even if they have an opt-out for school prayer they can still feel coerced, so required vs. coerced is a really important distinction and the guy screws it up about three times, which I can tell is starting to tick off the Justices. His argument is also diluted by the fact that he doesn't seem to care much about the use of God terms in other contexts, like "In God We Trust" on money, which several people remark afterwards seems a lot more coercive to the kid because she can opt out of the pledge but can't really get out of handling cash at her age (too young for a credit card).

For the big finish, Newdow gets off the clever retort to Scalia that the "under God" verbiage passed Congress unanimously because no atheist can get elected to Congress. This brings a big laugh and applause from a passel of invited Newdow supporters sitting up front. Rehnquist is PISSED. This stuff just doesn't happen in the S Ct. It's contempt of judge, like contempt of cop. Rehnquist puts on his booming Chief Justice voice and yells that if there's another outburst the courtroom will be cleared. Given that Rehnquist is one of those silent authoritarian dudes like Marlon Brando as The Godfather or Albert Grossman in Don't Look Back, him yelling is a big deal. Normally he just looks at you over his glasses and you stop doing whatever it is. To me, the fact that Newdow's supporters would carry on like this shows that they aren't taking the case seriously and don't expect to win. Instead they'll continue being the Jerks Everybody Loves to Hate, Madeleine Murray O'Hair stylee. Whatever. I'm kinda sorry that a more serious argument is not being made here because they do have some good legal points, but this is a circus just like I figured it would be.

Finally Cassidy gets up and rebuts and he sounds really, really angry because Newdow has misrepresented some facts and also he's probably pissed off that Newdow and company dissed the Court. Unfortunately Cassidy rebuts on four points which is about two too many and also talks too long so Rehnquist has to cut him off. He should have just stopped after the previous sentence which would have made a good close instead of starting another one.

12:30 pm or so: Back to the checkroom to pick up all my stuff and then make it down the one million white marble front steps which are almost impossible to see properly in the noonday sun when you've been sitting in a dark courtroom for a few hours and are half asleep. And past a few hundred protestors who all seem to be atheists waiting for Newdow to pop forth and say a few words - where's the Jesus contingent? - then on to the office, where I discover that I have not made it into any of Jennifer Kerr's AP stories. (The kids behind me who ordered the pizza did.) But hey! I have BATHROOMS! and FOOD! and COKE MACHINES!! So I get to spend the rest of my day pumping caffeine to stay awake before going home to sleep in a nice warm bed, YAY!

That's about it, except that I've decided once and for all that I don't mind getting old if I can end up looking like Sandra Day O'Connor, whose pictures don't do her justice (hah, bad unintended pun there :) and who in person kinda Glows, her frail body and fluffy white hair backlit by knowledge like one of those superwise old alien queen mothers on Star Trek. I think there's a point where brainpower and What You Have Accomplished in Life take over from the impression of the physical body, like for each thing you learn you give up a couple of beauty cells and finally you're a Creature of Light and the body is really irrelevant. Plus she used to work on a ranch, how cool is that? shades of Giant. I'm going to read Lazy B as soon as I get around to it.

Hopefully the next time I see that courtroom, I'll be getting sworn in. *Knock wood, cross fingers, si Dios quiere.*
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