Clarence Thomas, Constitutional Law, SCOTUS, Stephen Breyer, Supreme Court, Tax Law

The Waiting Is The Hardest Part

Most news you get in life, you know when you’ll get it. Law school grades are posted on a schedule. Your doctor will tell you when the test results are due back. You know when the polls close on election night, and that it will only take so long to count the ballots (though there are some exceptions).

The Supreme Court isn’t like that. Here they are, the closing days of October Term 2011, and all we know is that the Supreme Court will issue opinions at some point in the next few weeks. We don’t know if today is the day.

This creates an odd frustration and excitement in the section of the courtroom where members of the Supreme Court Bar sit.

Today, a number of lawyers recognize Art Spitzer, the legal director for the D.C. area ACLU, sitting in the section for members of the Supreme Court Bar. He was at the Court last week, too. The lawyers sitting and waiting are starved for information about what’s about to happen next.

As lawyers come in, some recognize Art and ask him what opinions the Court will hand down today. He’s a good guy, and reminds them that the only people who know are putting on black robes as he talks. He amicably complains that last week he schlepped all the way down to the Court only to hear a bankruptcy opinion. Art is not interested in the Court’s bankruptcy jurisprudence.

There’s a lot of conversation about what the Court might do today — is life without parole for juveniles constitutional? Is Obamacare? What about the newest Confrontation Clause case? The section of seating for bar members crackles with lawyers eager to show they know what cases are on the Court’s remaining docket.

The Justices come take their seats on the bench — all but Alito — and the Chief Justice announces that Justice Breyer has the first opinion of the day.

We’re on the edge of our seats as Breyer takes a second to make sure he has the attention of the courtroom. He starts to speak….

“This case concerns payments for sewers.”

Justice Breyer sees the humor in this pronouncement. He pauses as a chuckle ripples through the room.

Everyone in the courtroom who does not practice Indianapolis tax law mentally checks out. Justice Breyer explains that rational basis review means some decisions about whom to tax will be lousy for some people, and yet will still be constitutional.

Today’s second opinion, Reichle v. Howards, is more interesting.

Howards did not like Vice President Cheney. At a shopping mall in Colorado, he went up to the Vice President and told him that he disapproved of the war in Iraq. As the Vice President was walking away, Howards touched him on the back.

Secret Service agents later testified that it was a hostile push. Howards said it was a friendly pat.

He was arrested by the Secret Service. Charges were brought and dropped.

Howards sued. The question before the Court was whether the agents had qualified immunity for arresting Howards.

Justice Thomas wrote the opinion. I suspect that also tells you the result.


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. You can reach him by email at mattkaiser@thekaiserlawfirm, and you can follow him on Twitter: @mattkaiser.

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