How much collegiality is there on the U.S. Supreme Court? CNN’s Joan Biskupic reports that the answer is not much. According to Biskupic:
“[W]hile the justices put up a polite front, some of them recount testiness behind the scenes. [Chief Justice] Roberts in public venues typically exudes respect for his colleagues, yet in the private confines of the columned building, he can sometimes be dismissive. Friction surfaced on occasion during the last annual session between senior liberal Ruth Bader Ginsburg and Neil Gorsuch, Trump’s first appointee, and in an instance between Roberts and liberal Stephen Breyer.”
But an episode at the Supreme Court yesterday suggests a genuinely cordial atmosphere has taken hold among the justices.
On Tuesday the justices heard oral argument in the case of Nutraceutical Corp. v. Lambert. In an excellent analysis of the case for SCOTUSblog, Professor Howard Wasserman noted that repeated instances of laughter interrupted the oral arguments:
“Anyone who believes civil procedure is not funny should read the transcript of Tuesday’s argument in Nutraceutical Corp. v. Lambert, which showed eight interruptions for laughter in a case considering whether the 14-day period for appealing a class-certification decision is subject to equitable tolling based on concerns for fairness and justice. No one knew interlocutory appeals could be so humorous.”
The transcript really is quite fun to read. The attorney involved in most of the humorous exchanges was John Hueston, counsel for Nutraceutical Corp. Here are some excerpts:
JUSTICE GORSUCH: Why doesn’t your interpretation itself render that language [in Appellate Rule 26(b)] a nullity?
HUESTON: And, Justice Gorsuch, I've been giving thought to that.
JUSTICE GORSUCH: I had hoped you might.
(Laughter.)
HUESTON: Thank you.
JUSTICE GORSUCH: So have I.
(Laughter.)
Later, there was a funny exchange involving Justice Kagan.
HUESTON: Your Honor, doctrinally, that is our argument, that when you have language as we do at issue here, emphatic and mandatory, it precludes the reading of all equitable exceptions.
JUSTICE KAGAN: Well, Mr. Hueston, you can’t please everyone here.
(Laughter.)
HUESTON: I'm trying my best, Your Honor.
Then Justice Alito got involved by speculating about how a Martian invasion might be cause for equitable tolling of the time period for interlocutory appeals.
JUSTICE ALITO: I mean, it’s not clear that you face this binary choice. The problem with unique circumstances, a potential problem, is that every lawyer who is in trouble thinks that the circumstances of that lawyer’s case are unique and every judge who wants to get to a particular result can characterize the facts of the case before the judge as unique. But maybe there’s such a thing as the catastrophic exception or the apocalyptic exception.
(Laughter.)
JUSTICE ALITO: So, if there’s a Martian invasion, there would be an exception for that. But something short of that, you know, like the attorney is sick, wouldn’t work.
HUESTON: That’s right, Your Honor.
There was also a funny moment when Justice Breyer referred to a concurring opinion by Justice Ginsburg.
JUSTICE BREYER: What do you think in-- I think it was Justice Ginsburg’s concurrence in Carlisle, where she said that the Court had recognized one “sharply honed equitable exception”—it doesn’t have the word “equitable,” but it means it—“to mandatory claim processing rules.” The unique circumstances exception.
HUESTON: Your Honor -
JUSTICE BREYER: Is that—do you agree with that?
HUESTON: I agree that Justice Ginsburg filed a concurring opinion and described -
(Laughter.)
To be sure, a single oral argument is not necessarily representative of what goes on behind the scenes, and Hueston himself contributed to the humorous atmosphere with quips of his own. But yesterday provided at least a hint that the justices want to strike a slightly different tone during oral argument. The justices’ questioning of counsel was just as intensely rigorous as ever, but the humor in the courtroom suggested a notably friendly atmosphere among the justices.
Indeed, the chief justice seems to have made it his mission to reassure the public of the justices’ personal affinity for one another. In a quite interesting address last month at the University of Minnesota, Roberts insisted that a spirit of collegiality prevails on the Supreme Court. Here is how he ended his prepared remarks:
“Those of us on the court know that the best way to do our job is to work together in a collegial way and I’m not talking about mere civility, although that helps. I’m instead talking about a shared commitment to a genuine exchange of ideas and views through each step of the decision process. We need to know at each step that we are in this together.
There is a concrete expression of that collegiality in a tradition of the court that has prevailed for over a century. Before we go onto the bench to hear argument in the case, before we go into the conference room to discuss a case, we pause for a moment and shake each other’s hand. It is a small thing perhaps. But it is a repeated reminder that, as our newest colleague put it, we do not sit on opposite sides of an aisle. We do not caucus in separate rooms. We do not serve one party or one interest. We serve one nation.
And I want to assure all of you that we will continue to do that to the best of our abilities, if times are calm or contentious. Thanks very much.”
Then during the Q & A period, Professor Robert Stein asked Roberts whether he took any steps as chief justice to foster collegiality on the Court. Here is what Roberts said:
“I think the collegiality on the Court is very, very good. We do think we are in this important enterprise together. . . . The collegiality is very good. In many ways, it’s unlike any other job. There aren’t many jobs where everybody is doing exactly the same thing. I mean if you are at a company, and you are all in sales but you are selling to different people and all that kind of thing.
We do exactly the same thing. We read the same briefs and go to the same arguments and read the same cases, and that does cause a real bond to develop between you and also, because of obvious reasons, we are often the only people we can talk to about certain subjects because you don’t want to talk about a lot of different things with members of the public. Certainly not politics or other things like that.
But we can talk to each other about it and again that helps form a bond. And I think we appreciate the pressures that each other are under and that creates a certain amount of empathy that you may not have in other enterprises. There have been times on the court when there have been unpleasant people there and that has made life unpleasant because you do work in such close quarters. But now is not one of those times.”
The audience responded to Roberts with sustained applause, and rightfully so. The justices have a unique public platform to demonstrate to the country how we can disagree without being disagreeable. Now more than ever we need them to embrace that role. As Abraham Lincoln once said, “Though passion may have strained, it must not break our bonds of affection.” Whether the justices have taken that lesson to heart remains to be seen, but it will be interesting to follow the tenor of oral argument during this new term.
A video of the full Roberts speech is available on CSPAN here and a link to yesterday’s oral argument transcript is available here.
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