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An Amusing Oral Argument: Justice Thomas Opens His Mouth, and Justice Sotomayor Struggles With Math

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Sorry, we didn’t mean to get your hopes up (or maybe we did). The famously sphinx-like Justice Thomas did not ask a question at oral argument yesterday — but he did open his mouth and emit hearty laughs. From CNN:

Sometimes the most complicated of cases at the Supreme Court brings out the best arguments. It certainly brought out the giggles in a little-watched appeal Tuesday over federal prison terms.

The justices managed to crack themselves up — along with the public audience — at least a dozen times in the hour-long oral debate. Justice Clarence Thomas rarely speaks at the high court’s normally sober sessions, but he especially enjoyed the gentle insults and self-deprecating jibes his colleagues showered on each other. His booming laugh could be clearly heard at times.

So what gave CT a case of the chuckles during Barber v. Thomas?

At issue was how the federal Bureau of Prisons should calculate “good-time credit” – reduced sentences for inmates staying out of trouble in custody. Prisoners can earn up to 54 days of credit for each year of the sentence.

This “question presented” doesn’t sound like a laugh riot. But watching the justices talk smack — and attempt to do math, a subject Justice Stevens hasn’t tackled since FDR was president — generated some laughs.

The ambiguity comes with language in the federal law on how to add up the credits. Prisoners and even law enforcement officials find the formula complicated. The high court agreed Tuesday – repeatedly.

Justice Antonin Scalia suggested the good-time credits kick in at day 311 – 54 days before year’s end – and not day 365.

Jeffrey Wall, arguing for the government, replied, “Justice Scalia, I think that sets up an odd system.”

Scalia pointed his finger at Wall’s adversary, a federal public defender sitting in the next table, who was nodding his head vigorously at Scalia’s comments. “See, he agrees with me!” said the justice.

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Practice pointer #1: Just like a candidate at a presidential debate, when you’re arguing before the Supreme Court, monitor your facial expressions and gestures. The counsel table at One First Street is surprisingly close to the bench — and Nino has better eyesight than you think.

Practice pointer #2: try not to faint.

Justice John Paul Stevens later expressed concern at the government’s position. “If there are 195,000 people spending significantly more time in jail than they should, that’s kind of troublesome.”

Ya think? But see Texas.

So how did the government lawyer, assistant to the solicitor general Jeffrey Wall, respond to JPS? Let’s go to the transcript:

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MR. WALL: Justice Stevens, I think what I would say is the bureau has been doing it the same way since 1987. Congress has amended this statute five times in the last 20 years. It has never moved to alter the bureau’s methods.

JUSTICE KENNEDY: But the cumulated –

JUSTICE STEVENS: Probably they didn’t understand it because it’s an awfully hard statute to understand.

MR. WALL: Justice Stevens, with all respect, Justice Breyer got it in the first 5 minutes.

Ouch. But in Jeff Wall’s defense, we hear from courtroom observers that, in the context of the full argument, it didn’t sound quite as snarky as it now seems on paper. And Justice Stevens had a sense of humor about it:

JUSTICE STEVENS: Well, he’s a lot smarter than I am.

JUSTICE SCALIA: Even Justice Breyer has got it! Whoa!

(Laughter.)

You might not agree with his views, dear liberal friends, but Justice Scalia is the coolest justice. That’s all.

This wasn’t the end of amusingly awkward moments at yesterday’s argument. Back to the CNN report:

Near the end, Justice Sonia Sotomayor had problems with her math.

Under the current interpretation, the government does “the measurement [of good-time credit] at the end of the 365 days,” she told Stephen Sady, lawyer for the inmates. “Let’s say he misbehaves on the 340th day, and they say for that reason, we’re only going to give you 10 days of credit. So now your year starts at 350?”

“355. Yes,” Sady corrected her, politely of course..

“No 350, because they are only giving 10 days of good-time credit.” She paused for a second. “Because at the end of– wait– 355…”

“355,” answered Sady, politely of course, but smiling.

“That was pretty bad,” said Sotomayor, hands raised, shaking her head and chuckling at her mistake. The courtroom erupted in laughter.

Moral of the story: don’t ask a Yale Law grad to do mathematics. Or maybe any law school graduate, for that matter — even securities lawyers, according to Madoff whistleblower Harry Markopolos.

(Or, from the perspective of former Harvard president Larry Summers, women. As we’ve previously discussed, the other female on the Court, Justice Ruth Bader Ginsburg, isn’t a math whiz either.)

Anyway, we’re glad to hear that Justice Thomas enjoyed himself at the argument — even though we’re disappointed he didn’t ask a question. We understand not wanting to break a streak of silence that dates back to February 22, 2006 (over four years). But if CT had to pick a case in which to speak, Barber v. Thomas would have been a good one.

The lawyer who argued the case for the Solicitor General’s office, Jeff Wall, is a former Thomas law clerk — as well as a former Kirkland & Ellis lawyer, clerk to uber-feeder Judge J. Harvie Wilkinson, and University of Chicago Law grad (that’s quite a résumé). And although Wall has argued before the Nine before, representing the government as an amicus, this was his first full half-hour argument.

If a former Thomas clerk can’t get his boss to join in the oral argument fun, who can?

High court debates a little case with lots of laughter [CNN / Political Ticker]
Barber v. Thomas [U.S. Supreme Court via SCOTUSblog]

Earlier: Justice Ginsburg: Not a Math Whiz?

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