Nine Supreme Individualists: A Guide to the Conversation
By Joan Biskupic
While they speak collectively as "the Court" when they write decisions, during oral arguments they are their most individual selves: nine people having a conversation, revealing their interests and personalities, quirks and manners.
It is the most public part of their work, and this week marks the last regular session of oral arguments for the current term. Although a visitor might be confused about who's who in black, you can know them by their remarks.
Justice Stevens | Justice O'Connor | Justice Scalia
Justice Kennedy | Justice Souter | Justice Thomas
Justice Ginsburg | Justice Breyer
In his 26th year on the bench and nearing his 12th term as chief, Rehnquist is a demanding questioner who is nonetheless prone to humor and the kind of quirky independence that led him to put gold stripes on the sleeves of his robe. A native of suburban Milwaukee, Rehnquist, 73, often uses quaint phrases. He told one lawyer who was awkwardly offering a legal standard, "That sounds like running around Robin Hood's barn." (Robin Hood did not have a barn, of course, and the expression means to wander about looking for something that isn't in Sherwood Forest, or elsewhere.)
But mostly, Rehnquist can cut a lawyer down to size. When one tried to argue that the court should pay attention to what state legislatures were doing in a particular area, Rehnquist admonished, "We don't ordinarily say when we're trying to interpret a provision of the Constitution ... 'Let's hear what the people have to say about it.'" When a lawyer declared with some flourish that he had said all he wanted to say before his time had expired, Rehnquist quipped that he was luckier than most.
Justice John Paul Stevens
At 78, the silver-haired Stevens is the oldest justice, and more deferential than the others. He tends to lay back at the rough-and-tumble start of a session and then preface his question with an apology of sorts. "I'm puzzled about your response," he'll begin. During a recent copyright case, he said, "Maybe I'll reveal my ignorance. ... But I just want to be sure I understand ..."
In written opinions, the bow-tied Stevens is one of the more intellectual justices, and he often separates himself from his colleagues with his distinct reasoning. But during arguments, the Chicago native is preoccupied by the practicalities of a case. How exactly does the law work?
The polite justice who's been on the bench since 1975 is no pushover, however. A former clerk who later argued before him once said, "As he begins to ask his question, you can hear the saw going into the floor around you."
Justice Sandra Day O'Connor
The court's first female justice is a vigorous questioner, often jumping in before the lawyer at the lectern gets much further than the traditional opening of, "May it please the Court ..." A stickler for procedure, O'Connor, who is 68 and has been on the bench since 1981, will home in on flaws in a case that might stop the court from having to resolve the constitutional dilemma at its heart.
Born in El Paso to a pioneering family, O'Connor cannot abide prattle and often admonishes a wavering lawyer to "just answer 'yes' or 'no.'"
She punctuates every other word, and her voice is often tinged with exasperation: "Don't you think every employee in the country knows that if they're mistreated, they can complain to somebody higher up the ladder?" she asked during a sexual harassment case. "I mean, it's not like everybody is totally ignorant of these situations."
A man of a hundred hypotheticals. In a recent case involving California's claim to a sunken 19th-century ship, Scalia offered the scenario: "Suppose I drop a silver dollar down a grate, and I try to bring it up with a piece of gum on a stick, and I can't do it, and I shrug my shoulders and walk off because I have not gotten it, and then somebody comes up and lifts up the grate and gets my silver dollar. Is that his silver dollar? Have I abandoned it just because I could not get it?"
Scalia, 62 and a 1986 appointee, also is known for his unrestrained sarcasm. After he spun a hypothetical question last week, and the lawyer responded that that wasn't the case before the court, Scalia said, "No!" And he added mockingly that of course he knew it wasn't part of the case.
But the New Jersey native has an amazing sense of timing. He will crack a joke laden with legal jargon and still get lots of laughs.
Justice Anthony M. Kennedy
On the court for 10 years now, Kennedy actually seems to want to know the answers to the questions he asks. It's rare that he will use oral arguments to telegraph his views to other justices or simply argue a point.
A native of Sacramento, Kennedy, 61, leans forward in his big black leather chair, looking earnest and sometimes befuddled. To one lawyer, he said, "I think that would be a very dangerous rule. ... I have concerns about that rule. ... Do you have concerns about that rule?"
Kennedy is the key vote on many of the biggest cases, partly because he isn't as dug-in and as certain as some of his colleagues.
A persistent questioner, Souter poses his queries in paragraphs, logically linking the law's rules and consequences in his distinctive Yankee drawl. He focuses on history and court precedent. Souter, 58, grew up in Weare, N.H., and lived there, except while at college, until 1990, when he was named to the court.
And as with Stevens, Souter's manners are on display. "Have you finished your answer to Justice O'Connor?" he asked in a recent case before posing his own question. He likes to zero in on what the precise rule of law should be.
Sitting elbow to elbow with Scalia, Souter is sometimes a foil to him. Once, in a case about whether police should be able to order passengers out of a stopped car, as Scalia joked about passengers who desperately want to get out because the hypothetical driver had been speeding, Souter quipped, "You can see what Justice Scalia's passengers tend to feel like."
Although Thomas is generally quiet during oral arguments, it's not that the 1991 appointee doesn't have provocative things to say. Just last week, he opened a dissenting opinion in a case about jury selection by saying, "I fail to understand how the rights of blacks excluded from jury service can be vindicated by letting a white murderer go free."
But Thomas does not say such things, or much else, from the bench. The native of Pin Point, Ga., rarely asks a question, and when he does, it is in the more obscure cases.
He has told some friends that he thinks the hour of oral arguments should be a platform for what the lawyers, not the justices, have to say.
So Thomas, 49, rocks in his chair, looks at the ceiling, occasionally reaches for a drink from his silver tumbler and keeps his thoughts to himself.
Justice Ruth Bader Ginsburg
This justice, in contrast, sits at attention and focuses hard on the lawyer at the lectern. Ginsburg, 65, will often pound away at the same issue.
And she is to the point: "Why is there an exception here?" "How did this happen?" She expects precision in response. To one advocate, she said recently, "I'm sort of fuzzy about" the lawyer's answer. "On the one hand, you give [a particular view], but then it kind of drifts off into the wind."
Born in Brooklyn, Ginsburg was appointed to the court in 1993. A fierce opponent of gender stereotyping, she objects to assumptions about men as much as about women. During a sexual harassment case involving a man who had been abused by other men on an offshore oil rig, she disparaged tormentors who, hypothetically speaking, might say, "You're not the right kind of male."
Justice Stephen G. Breyer
A longtime law professor, Breyer asks questions in carefully numbered paragraphs and sometimes includes so much of his own summing-up that he has to declare at the end: "That was a question." As he gestures in the air, he looks like he could use a chart to make his point.
Breyer, 59, worries aloud about the law's dilemmas. He'll take off his glasses, rub his head and say, "I'm just trying to understand this." To one lawyer, he recently observed that "you've now put your finger on just the point that's bothering me."
But Breyer, who was born in San Francisco and joined the court in 1994, is an easygoing justice who backs off when a lawyer is foundering. "I grant you, it's hard to work out," he told one lawyer struggling to make a clear point.
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