Is the Supreme Court impartial?

[viscousmemories]

I was just looking at these excerpts (http://www.nytimes.com/2003/03/27/national/27TTEX.html?ex=1094443200&en=12caebf56992e641&ei=5070) from the Lawrence v. Texas Supreme Court case. This guy Smith was arguing against Texas' anti-sodomy law, and Rosenthal was defending it. I couldn't help but notice that Justice Scalia appears to lead Rosenthal when he falters in his defense. Is that common? Isn't the Court supposed to be impartial? Here's the excerpt I'm talking about. Maybe I'm buggin', but you tell me:

JUSTICE SCALIA Why do you think that the public perception of homosexual acts has not changed? Do you think it hasn't?

MR. ROSENTHAL The public perception of it?

JUSTICE SCALIA Yes, yes. Do you think there's public approval of it?

MR. ROSENTHAL Of homosexuals, but not of homosexuality activity.

JUSTICE SCALIA What do you base that on?

MR. ROSENTHAL I beg your pardon?

JUSTICE SCALIA What do you base that on?

MR. ROSENTHAL Well, even ——

JUSTICE SCALIA I mean I think there ought to be some evidence which you can bring forward.

MR. ROSENTHAL Sure.

JUSTICE SCALIA Like perhaps the failure of the federal Congress to add the sexual preference to the list of protected statuses against which private individuals are not permitted to discriminate, that addition has been sought several times and it's been rejected by the federal Congress, hasn't it?

MR. ROSENTHAL Yes, sir, and in addition, what I was trying to say by the fact that various states have changed their position on sodomy, they've done it through the legislative process. And that's where we believe this belongs, is in the statehouse of Texas, not this court.

JUSTICE SCALIA Yes, but I thought you were responding to the argument that the public perception hasn't changed, that there still is a public disapproval of homosexual acts.

And you can't establish that by saying that the states have repealed their homosexual laws.

MR. ROSENTHAL Well, I think it goes back to whether people in Texas and people in the other states that had this law on their books actually accepted through their representative government. I think it comes down to the actual people who determine the consensus and mores of the state or the elected legislators.

JUSTICE SCALIA Might there be a difference between the people's willingness to prosecute something criminally and the people's embracing of that as a fundamental right?

MR. ROSENTHAL Well, certainly. And just because someone has decriminalized sodomy doesn't mean that they embraced that practice as something that ought to be taught in the schools, as was mentioned before.

[D. Scarlatti]

I think they do that all the time. They've already been through all the briefs and have pretty much already made up their minds. The oral arguments are just an opportunity for them to fuck around with lawyers.

[D. Scarlatti]

Incidentally you can listen to the oral arguments in Lawrence v. Texas (and many other cases) here:

oyez.org (http://www.oyez.org/oyez/portlet/popularAudio/)

[viscousmemories]

Cool, thanks Scarlatti.

[Blake]

During questioning, justices often pursue distinct lines of argument in their questioning. Scalia's angle seems to be more pronounced here than my overall impression of this kind of thing.

As to the general question, the Court is certainly not impartial. Impartiality is part of the Court's mythology, but it has been savaged both in the scholarly arena and the public perception by the occasional standout decision like Bush v. Gore. For instance, I've rediscovered the obvious doing some research for that article on political parties and philosophies I've promised to write (I swear, coming soon), that in the first distinct period of its life (until the Civil War) the Supreme Court consistently made decisions that protected and enhanced the Union and property rights (as well as establish its own power, of course); it's a very clear and sustained slant.

[Stephen Maturin]

Thanks for the reminder, Tom. That has to be one of the top five funniest exchanges in the history of appellate argument. IIRC, Rosenthal was arguing on behalf of the Texas county that prosecuted Lawrence and Smith. His one and only job was to come up with some rational basis -- ANY rational basis -- for upholding the Texas statute against constitutional attack. Scalia, who loathes all things substantive due process, tried to assist by lobbing softball after softball in Rosenthal's direction. Poor Rosenthal swung mightily over and over, but came up with nothing but air. Next thing you know, the entire courtroom is awash in flop sweat.

Having bollixed an oral argument or two myself, I kinda feel sorry for the guy. Maybe stagefright got the better of him. On the other hand, the whole mess was just too goddamned funny. Not laughing would have been an abomination in the eyes of Jehovah.

Scarlatti's right. Most of the time, each Justice knows how s/he's going to vote well before oral argument. The questioning is mostly about fucking with the lawyers. In close cases, though, a Justice might use oral argument as a tool for influencing a wavering colleague.

As for your question, impartiality is tough to come by in any court of last resort. No one comes to the Court free of a political philosophy, a view on the role of the judiciary, bias for or against particular classes of litigants, etc. It's difficult, if not impossible, to keep such biases at arm's length when there's nobody who can authoritatively say you're wrong.

[D. Scarlatti]

In close cases, though, a Justice might use oral argument as a tool for influencing a wavering colleague.

Good point, but of course they have to be awake! Once again, every Justice* save Clarence Thomas chimed in at some point during the oral argument above. Obviously it's not dispositive, but you have to wonder about Thomas' degree of engagement with the Court. Conversely Scalia often can't seem to shut up, and Rehnquist once again gets all the big yuks.

Also on the original question, I think partiality enters the equation with respect to each Justice's partiality to his or her understanding of the Constitution, whether expansive or restrictive, and how that expansiveness or restrictiveness applies to the issue under consideration. Whether the federal courts are politically partisan is another question entirely, and I would like to think they're not, at least, they're not supposed to be.

* I don't remember now if Kennedy did, but he wrote the majority opinion.

[viscousmemories]

Thanks for the info you guys. I'm pretty stoked that I could see right through what was going on there. In my book that means I'm just the SAT's, a bachelor's degree, the LSAT's, $100,000 and 10 years from being a lawyer! :P

[maddog]

Well, the court is less impartial than it used to be; the judiciary has been increasingly politicized over the last 40 years; backlash to the Warren era court, and hastened mightily since Watergate and most especially Bork.

The notion of impartiality has been savaged by academia and the popular view in recent years, but for myself I hold fast to the ideal. Yes, true impartiality, objectivity and absence of bias are not possible to achieve in the real world. But the mythology or mytique does have value, as an ethos or moral standard. Yes, we are fallible human beings, but the harder we hew to the line of requiring ourselves to be as impartial and unbiased as we are able, the closer we come to actually achieving it. When it is labeled mere pretense, stripped away, and dismissed as a false ideal, it makes it more acceptable to yield to frailty and temptation.

The purpose of oral argument depends in part upon the court and the case. At an intermediate level state appellate court, for example, it has been my experience that questions are asked because a Justice or Justices are concerned about the point of inquiry. At that level, pay close attention to the call of the question -- they are asking because they truly want to know.

At the level of a state Supreme Court (again, only in my own experience), the Justices are not particularly interested in confounding the lawyers for fun. Far more often, they are communicating with their colleagues on the bench; they are signalling the line of reasoning that is important to them and the places where they, or a competing view, may have problems. Counsel are clued in and may tailor their argument to address the concerns expressed or implied in the questioning. Experienced court-watchers (scholars or press) can also gain a glimpse of a particular Justice's thinking on an issue.

I can't speak from actual experience at the U.S. Supreme Court level (aside from listening to or reading some actual oral arguments). Poor Reynolds was haplessly missing the boat. Scalia was fishing for a particular response, practically begging the lawyer to offer up the rationale he was hinting at, but Reynolds was too focused on his own line of argument and muffed his opportunity to hit a home run (with Scalia, anyway).

At almost any level of appellate court, state or federal, briefing will have been completed long before the argument, and the Justices on a particular panel will be familiar with the facts, the relevant cases, and the issues. Some courts do not begin to prepare their opinions until after oral argument. Others have worked up an extensive memorandum and come to tentative conclusions before the argument. There are pros and cons to each approach. Even in courts in which a comprehensive analysis and tentative conclusion has been reached before oral argument, however, never discount the importance of oral argument. It is always possible that someone will say something that will alter someone's thinking. It might SEEM like a done deal, but you have to remember that the rules of review heavily favor the original judgment. Most judges are open-minded enough to consider new material or a new approach, or a viewpoint that had not been clarified before.

Finally, just because a Justice at oral argument seems to be asking questions which betray that he/she is seriously considering a certain line of reasoning does not ipso facto mean that the Justice is "biased." They may have adopted that line of reasoning in a very objective, neutral way. And, you don't know until you see their written opinion whether they are able to alter their views based upon what is presented in briefing, oral argument, or the opinions of other members of the court.


#13

[wildernesse]

Good point, but of course they have to be awake! Once again, every Justice* save Clarence Thomas chimed in at some point during the oral argument above. Obviously it's not dispositive, but you have to wonder about Thomas' degree of engagement with the Court. Conversely Scalia often can't seem to shut up, and Rehnquist once again gets all the big yuks.



Thomas has said that he just doesn't see the need to ask questions during oral arguments--if they haven't made their points in their briefs then tough luck for them. I think that overall he just doesn't care for public scrutiny or politicking that goes on in the oral arguments. I also found it interesting that he said almost the only amicus briefs that he pays any attention to are those from the ACLU because of their consistent quality. Justice Thomas has visited our law school twice in the past couple of years--last year, after meeting with the Black Law Students Association, he held a question and answer session for the general law school population.

I don't think that the Supreme Court is impartial. As other posters have mentioned, they show up with their own ideas about how things should work which influences where their opinions fall.

I just have to say that I love Scalia. Love, love, love him. Not because I agree with him most of the time, but because you can always count on him to write something that will keep you awake. Plus, I just read Morrison v. Olson last week, which is a good example of Scalia near his best.

[viscousmemories]

I found this thread while looking for something else, and I'm resurrecting it because I think it's really good. Man, I've learned a lot in the last two years.