Sunday, February 14, 2016

"Do you think he knows the rest of us are here?"

From Robert Barnes's front-page (with continuation inside) obit for Scalia in today's WaPo:
It is hard to overstate Justice Scalia's effect on the modern court. Upon his arrival, staid oral arguments before the justices became jousting matches, with Justice Scalia aggressively questioning counsel with whom he disagreed, challenging his colleagues and often dominating the sessions. He asked so many questions in his first sitting as a justice that Justice Lewis F. Powell Jr. whispered to Justice Thurgood Marshall: "Do you think he knows the rest of us are here?"
There is no doubt something or perhaps a lot to this, but I gathered from perusing the oral arguments in Brown v. Bd. in the mid-50s (in preparation for writing this post) that Justice Frankfurter also asked a lot of questions, occasionally pointed ones (actually I don't know how typical that was, but it was certainly evident in the Brown arguments). Here's an exchange between Frankfurter and John W. Davis (sorry, it's out of context, but anyway):
Justice Frankfurter: Mr. Davis, do you think that "equal" [in the Fourteenth Amendment] is a less fluid term than "commerce between the states"?
Mr. Davis: Less fluid?
Justice Frankfurter: Yes.
Mr. Davis: I have not compared the two on the point of fluidity.
Justice Frankfurter: Suppose you do it now.


Peter T said...

Hmm. Frankfurter is asking why he should consider one term capable of wider interpretation than another. Pointed, but not rude. But examples I have seen of Scalia's questioning have been aggressive, rude, often clearly biased. In Australia this would be considered unjudicial conduct, but where do you appeal from the US Supreme Court?

LFC said...

A fair point. I wasn't trying to equate the two in terms of aggressiveness/rudeness, just trying to suggest that Scalia was not the first to ask a lot of questions from the bench and in that way 'dominate' (in some views) the oral argument sessions. But it's impressionistic: I don't really know. On the current Court, all of them w the exception of Thomas tend to get involved in the questioning.