Thursday, October 14, 2010

In the Supreme Court

Yesterday I sat in on a Supreme Court argument for the first time in several years. It's always a bracing experience although I left with the feeling that this court has less understanding of and appreciation of the real world than ever, and that cuts right across the ideological spectrum--limited as it now is on the court: from center-right to extreme right.

Zillions of people seem to want to catch a glimpse of the court in action but relatively few are there to listen and follow the arguments themselves. The first case--at which I arrived halfway through, concerned when a criminal defendant needed to request the results of DNA testing. The argument became caught up, as they usually do, in the intricacies of state procedure. I had come to hear the next case--a Fair Labor Standards Act case. A lawyer I know works for the defendant company so this made me interested enough to attend the oral argument.

The case went off on whether an employee needs to put an intent to complain under the FLSA in writing or whether mentioning the intent orally to a superviser constitutes adequate notice to the company. There was a lot of interplay about what the word "filed" means but not until the end of the arguments did a real issue emerge. Justice Ginsburg spoke about intent of the 1938 statute--as it happens, Justice Scalia, the apostle of originalism, cracked that the FLSA was an "old fogey" statute, apparently because it was passed in 1938--namely, that the law intended to enable illiterate workers to register complaints without having to put them in writing. The court almost drew a deep breath because it had not been something that anyone else had even thought of, apparently. Justice Breyer seemed surprised in a sympathetic way and Chief Justice Roberts in a negative tone.

Not that I expect that this kind of basic issue will necessarily make it into the opinions. The last time I attended an rgument it was also about a notice issue--how long should prisoners be allowed to bring an internal grievance to prison authorities. Justice Stevens had posed the question of what was a reasonable time to the Solicitor General's rep who was appearing in support of the state prison authorities. The issue remained unresolved and was totally ignored in Justice Alito's opinion although mentioned in Stevens's unanswered dissent.

Justice Kagan did not sit on the labor case because it involved the SG's office, which appeared in support of the employee. I did see her in the criminal case and it was interesting to see her and Justice Sotomayor questioning heartily from opposite ends of the bench. All of them have their special ways of questioning--these two fired lots of theoretical questions. Breyer still puts forth complex hypotheticals. Kennedy asks tight questions aiming to provide some kind of basis for a ruling. Scalia and Roberts push their right-wing views. Not only does Thomas never ask a question but he often looks like he's sleeping.

The young lawyer from the Solicitor General's office brought some concreteness back to the employee's case by referring to the comparable language to what was at issue in this case to many other similarly-drafted statutes. The employer was well represented by one of the regular members of the Supreme Court bar; he again proved to me the value of retaining one of these frequent advocates. The lawyer for the employee showed some enterprise in rebuttal by picking up on Justice Ginsburg's point and emphasizing what the purpose of the statute was. But since his time ran out when he was not answering any justice's question, Roberts cut him off in mid-sentence.

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