Getting Snippy During Oral Argument

It's fairly well assumed, at least in appellate lawyer circles, that when Supreme Court Justices ask questions during oral argument, they're not doing it to get information. More often than not, they're speaking to others on the bench, trying to persuade or dissuade them from a particular position on the issue at hand. Still, it's rare to see it get as directly confrontational as in one argument yesterday.

The case deals with the issue of whether state death row inmates who are entitled to lawyers in federal court during post-conviction proceedings are also entitled to those lawyers during state clemency proceedings. It boils down to the interpretation of a federal statute and all the frivolity that entails. As a result, the ever present debate between Scalia and the rest of the Court over the use of legislative history in such cases (Scalia is against it), raised its head:

The phrase 'executive or other clemency,' Ms. Hansen Chavis added, gave a further indication of Congressional intent. All federal clemency proceedings take place within the executive branch, she said, and so the words 'or other' must have referred to state proceedings in which other parts of the government play a role in granting clemency.

Justice Antonin Scalia, who speaks often about the importance of fidelity to statutory text, liked that point. He was less receptive when Justice Stephen G. Breyer observed that Representative John Conyers Jr., Democrat of Michigan, had said he understood the law to apply to state clemency proceedings.

'I thought this was a federal law,' said Justice Scalia, who is hostile to judicial consideration of legislators’ statements in determining what laws mean. 'Is this a Conyers law?'

Justice Breyer responded, 'He happens to be the person who wrote it.' Justice Scalia continued to interrogate Justice Breyer as Mr. Jay, representing the government, looked on.

'Did his colleagues know what he said?' Justice Scalia asked.

'Yes, they did,' Justice Breyer responded.

Chief Justice Roberts stepped in. 'Counsel, you lead,' he said to Mr. Jay. 'We direct our questions to counsel.'

Ouch, scolded by the boss! Even at that lofty level, there's somebody higher than you in the food chain.