Elena Kagan, Immigration, Kids, Ruth Bader Ginsburg, Samuel Alito, SCOTUS, Supreme Court

Everyone Is Being Reasonable

The Supreme Court session starts at 10:00 a.m. At 9:55, a tall man with broad shoulders and little neck — a man with an ear piece running out of the back of his suit coat — tells everyone in the Courtroom to be quiet and stay in their seats until the session is over. The room quiets.

This is the calm before the storm. No one expects any of this term’s true blockbusters to be announced today – there will be no health care decision, no ruling on the constitutionality of the Stolen Valor Act, no ruling on whether Arizona gets to codify its very strong dislike of immigrants.

During this time, those who watch the Court are scanning for signs of either discord or harmony. Even a concert at the Court invites scrutiny of which Justice is chummier with which other Justice. The Supreme Court watching world is like a group of eight-year-olds in the week before Christmas, sniffing the presents under the tree and trying to hunt through their parents’ closets. It’s dignified.

The Courtroom is silent after the broad man quiets us. And then, growing louder, we hear voices. Male voices. And laughter, booming male laughter, as the Chief and Justice Scalia emerge through the parted curtains, and Court is called to order.

What does the laughter mean? Is Obamacare all but destroyed? Is a secret deal finally sealed? Or did the Chief Justice share a bit of ribald humor from his native Indiana?

The world may never know. Today at the Court is not a day for blockbusters or acrimony. Today is all about what’s “reasonable.”

Justice Kagan reads the first opinion in Holder v. Gutierrez and Holder v. Sawyers.

If it wants, the Bureau Board of Immigration Appeals can probably cut kids of immigrants a break by imputing their parents’ favorable immigration status to them under certain circumstances. The BIA doesn’t do that. The kids would like the BIA to cut them a break.

Justice Kagan takes her time laying out the background of the law, the case, and what’s happened before. She’s still teaching law as she does it – for such a technical area she explains it remarkably clearly.

And it’s hard not to think that it’s Justice Kagan announcing the opinion of the Court on a question of whether the kids of immigrants get the benefit of the doubt. Her reading is pregnant with the expectation that she’ll come around for the kids.

But she doesn’t.

The Court unanimously holds that the BIA’s interpretation is reasonable. It may not be the best interpretation, but it’s one option that works given the statutory language. It’s good to be a federal agency interpreting a statute.

Justice Ginsburg does the same thing in a case involving whether kids who are conceived after their father dies (through in vitro — you could see some folks in the Courtroom trying to puzzle that one out too) are eligible for Social Security survivor’s benefits. The case is Astrue v. Capato.

The Social Security Administration says only if they could have inherited from their deceased father under state inheritance law. And the Court agrees, holding, unanimously, that the Social Security Administration’s decision in this hopefully rare situation is reasonable.

Everyone on the Court is getting along. Both with themselves and the federal government. Does that mean something for health care reform?

The one non-unanimous decision is massively trivial – it’s hard not to think of Kissinger’s explanation that the reason the fighting in academic departments is so intense is because the stakes are so small.

Justice Alito reads the opinion in Taniguchi v. Kan Pacific Saipan, Ltd.

The question is interesting, cool, and as likely to be relevant to your daily life as the grammar of Klingon: Is translating the same as interpreting?

A professional basketball player in Japan was touring some property. He fell through a wooden deck. He sued the deck owner in federal court to recover for his injuries. The deck owner had to have a number of documents translated from Japanese.

The deck owner won. Under a cost-shifting provision of federal law, the deck owner asked the plaintiff to pay the costs of making the Japanese documents readable in English. The costs of interpreters can be recovered under the cost-shifting provision. What does this mean for the costs of translation?

Justice Alito’s opinion for the Court held that translating is not interpreting as folks ordinarily use the term. Justice Ginsburg wrote a dissent that Justices Breyer and Sotomayor joined.

If the deck owner wanted to be reimbursed for the cost, he should have hired one person to read the documents in Japanese, another to interpret what was being said orally into English, then have a third person write the English version down. Okay, that’s not in the opinion, but it’s the work-around some lawyer somewhere will come up with.

Witty man that he is, the Justice from Jersey also explained that the opinion is available from the Court in English; if you want it in another language, you bear the costs of translation.

Matt Kaiser is a lawyer at The Kaiser Law Firm PLLC, which handles complex civil litigation, white collar investigations, and federal criminal cases. On his blog, The Federal Criminal Appeals Blog, he writes about published opinions in criminal cases in the federal circuits where the defendant wins. He can be reached at mattkaiser@thekaiserlawfirm.

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