Antonin Scalia

The Eyes of the Law: The Red Mass

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st matthews cathedral.jpgOn October 1, before the start of the new Supreme Court Term, the annual Red Mass was held at St. Matthew’s Cathedral, in Washington, DC. Held before the opening of the judicial year, the Mass is celebrated “to invoke God’s blessing upon… all protectors and administrators of the Law” (description here).
Tony Mauro of the Legal Times reports on this year’s Red Mass, which was attended by numerous legal celebrities:

By law, the Supreme Court opens its fall term on the first Monday in October.

But by tradition, the Court season begins the day before, with the annual Red Mass celebrated at the Roman Catholic Cathedral of St. Matthew in Washington, D.C.

At this year’s Oct. 1 mass, four of the five Roman Catholic justices — along with Attorney General Alberto Gonzales, several other Cabinet members, and dozens of other area judges and public officials — were in the pews.

No sign of President Bush, who did attend the Red Mass in 2005. But plenty of other big names were in the house (of worship):

Chief Justice John Roberts Jr., who, with his wife, Jane, was active for many years in the Catholic organization that sponsors the mass, was in the front row, as were Justices Antonin Scalia, Anthony Kennedy, and Clarence Thomas. Justice Samuel Alito Jr., the other Catholic on the Court, did not attend, nor did the non-Catholic judges, some of whom have come in the past.

Why was Justice Alito not in attendance? Perhaps he was out of town?
If you know the answer to this question, or if you attended the Mass and can offer an eyewitness account of the proceedings — including sightings of any lower-court judges in attendance — please share your knowledge in the comments (or send us an email).
Seeing Red [Legal Times]
A Judicial SIGHT-ation Tomorrow: The Red Mass [UTR (2005 Red Mass)]
Judicial SIGHT-ations: Federal Judges Busting Out All Over! [UTR (2004 Red Mass)]
The Red Mass Online [St. Thomas More Society]

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Justice Scalia: Shaking His Bon Bon?

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bon bons and justice antonin scalia justice scalia.JPGAfter yesterday’s discussion of Tequilagate, the pseudo-scandal in which Justice Antonin Scalia stands accused of racial insensitivity for a passing reference at oral argument to Mexico’s national drink, we received this reader email:

Scalia’s “tequila” comment from the other day reminded me of a remark he made during oral argument in Hoffman Plastics, an immigration case from a few years ago. He made some crack about illegal immigrants who could stay home all day, eat “bon bons,” and get paid for it — if the NLRB had their way. I was surprised there was no outrage over that.

Intrigued by this, we tracked down the Hoffman Plastics oral argument transcript (PDF). And here’s what we discovered:

QUESTION: If he’s smart he’d say, how can I mitigate, it’s unlawful for me to get another job.

MR. WOLFSON: Justice Scalia –

QUESTION: I can just sit home and eat chocolates and get my back pay.

MR. WOLFSON: I don’t agree that the board would have to accept such a representation….

“Chocolates”? That’s much tamer, and far less snarky, than “bonbons.”
We checked back with our tipster, who claimed a distinct recollection of “bon bons.” So here’s what we’re wondering: Might Supreme Court oral argument transcripts get “scrubbed,” a la Congressional ones?*
This seems inconceivable to us. Such shadiness would be SO Article I — like sending nasty emails about masturbation to underage male pages…
But we don’t have the audiotape, so we don’t know for sure. If you also happened to be in the Hoffman Plastic audience and can recall whether Nino referred to “chocolates” or “bon bons,” we’d love to hear from you.
Of course, even if Nino did refer derisively to bonbon-popping illegal immigrants, it might not be seen as THAT problematic. After all, there’s no negative stereotype about undocumented aliens gorging themselves on bon bons — unless they’re French.
A “bon bon” remark might be viewed as slightly un-PC, in a “Let them eat cake” kind of way. Liberals might say: “Justice Scalia, how insensitive of you to refer to illegal immigrants eating bon bons! Don’t you know that they’re working day and night to obtain the bare necessities of life — not Teuscher champagne truffles?”**
But compared to other controversial things Justice Scalia has said (and done) over the years, it would be a pretty minor infraction.
Update: Oh darn. This has ruined our Friday. But thanks, Ben, for digging up the audio tape!
* We’d object to replacing “bon bons” with “chocolates.” The terms are not interchangeable. A bonbon is a very specific, especially indulgent type of sweet: “a candy with a fondant center, often with fruit or nuts, covered in fondant or chocolate.”
The word “chocolate” doesn’t convey the same decadence as “bonbon.” We might go instead with “truffles” (as in chocolates, not gourmet fungi).
** Teuscher champagne truffles are endorsed by Oprah — so they’ve got to be good. Says La Oprah: “They make the little hairs on my head rise. It’s so sinful!”
Oral Argument Transcript in Hoffman Plastic Compounds, Inc. v. NLRB [Supreme Court official website (PDF)]
HOFFMAN PLASTIC COMPOUNDS, INC. v. NATIONAL LABOR RELATIONS BOARD [Legal Information Institute of Cornell Law School]
Bonbon [Wikipedia]
Earlier: A Tempest Over Tequila
How Many Drunk Mexicans Live In Dahlia’s Head?

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An Anthology of Benchslappery

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judge william pryor bill pryor william h pryor jr.jpgJudge William H. Pryor, Jr., of the Eleventh Circuit, had an interesting op-ed in yesterday’s Wall Street Journal, in which he took issue with various “leaders of the bench and bar [who] have decried what they describe as unprecedented threats to the independence of the judiciary.” It’s a fun little piece, largely because the position Judge Pryor critiques is accepted in many quarters as a truism.
From the perspective of Article III groupies, however, this might be the best paragraph in the whole thing. It is, in essence, a concise collection of notable benchslaps — which Judge Pryor marshals in support of the proposition that recent critiques of the judiciary may not be as harsh as they seem.

Many contemporary criticisms of judicial decisions by politicians are no more heated than the criticisms written by jurists in dissenting opinions. In Roper v. Simmons, Justice O’Connor protested that “the Court [had] preempt[ed] the democratic debate through which genuine consensus might develop.” Justice Breyer warned, in what he called the “highly politicized matter” of Bush v. Gore, that “the appearance of a split decision runs the risk of undermining the public’s confidence in the Court itself.” Consider also the harsh words of Justice William Brennan in Oregon v. Elstad: “the Court mischaracterizes our precedents, obfuscates the central issues, and altogether ignores the practical realities . . . that have led nearly every lower court to reject its simplistic reasoning.”

Good stuff. But we must point out a notable omission: Why no Nino?
‘Neither Force Nor Will, But Merely Judgment’ [Wall Street Journal via How Appealing]
Judge Pryor’s Op-ed in Today’s WSJ [Southern Appeal]

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How Many Drunk Mexicans Live In Dahlia’s Head?

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dahlia lithwick headshot.jpgWe recently received an interesting piece of reader feedback that we’d like to pass along to you. It relates to the recent Tequilagate scandal, which we previously deemed to be “kinda stupid.”
We predict that we’ll get some hate mail and negative comments over this (perhaps from the webmaster of this site). But we’ll push ahead anyway. If we were thin-skinned, we wouldn’t be in this line of work.
Here’s what one reader had to say to us:

I think you should do another post on Dahlia Lithwick, turning the “Tequilagate” scandal on her. Because, really, saying that there is a stereotype of drunken Mexicans is racist in itself, since she basically invented the stereotype.

Like if someone said, “An Irish thief,” and I responded, “That’s racist. How dare you appeal to the stereotype of theiving Irish,” that would be weird, because the stereotype doesn’t exist. We’re drunks, not theives.

As reflected in this post and this one, here at ATL we strive for complete accuracy in racial and ethnic stereotyping. So we thank our reader for this valuable input.
(Okay, that’s all we really wanted to say. If you’re fine with this, then you can stop here. But if you’re inclined to disagree or attack us, please continue reading. Two notes of anticipatory defense appear after the jump.)

double red triangle arrows Continue reading “How Many Drunk Mexicans Live In Dahlia’s Head?”

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A Tempest Over Tequila

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tequila.jpgYes, we’ve heard all about “Tequilagate.” And we think it’s kinda stupid.
Yesterday the Supreme Court kicked off October Term 2006 with oral argument in Lopez v. Gonzales and Toledo-Flores v. United States. (Yeah, you guessed it — cases about the intersection of criminal and immigration law.)
From Linda Greenhouse’s account of the proceedings:

Part of the argument was spent debating whether, for technical reasons, Mr. Toledo-Flores’s appeal was moot, as the government argued. His lawyer, Timothy Crooks, said the case was not moot because under the conditions of his “supervised release” in Mexico, Mr. Toledo-Flores must observe certain rules, including abstention from alcohol.

Justice Antonin Scalia replied that this was not a burden with sufficient real consequences to keep the case alive.

“Nobody thinks your client is really, you know, abstaining from tequila down in Mexico,” Justice Scalia said.

We laughed at that. But had we been in the courtroom at One First Street, we would have sheepishly morphed our laughter into a cough. Per Dahlia Lithwick, who was there:

Nobody laughs. But then, nobody winces or flinches, either. Somehow, a remark that would have flattened us had a Souter spoken it is just a solid day at the office for Scalia. I have no idea where the tequila comment should register on the nation’s macaca-meter. The more interesting question is about Scalia’s deliberate carelessness with language….

Umm, is this really the issue? Or is it just that Nino is one of the nine who hasn’t been brainwashed by the PC police? Accusing Justice Scalia of exhibiting “carelessness with language” strikes us as a bit odd. He is generally agreed to be the finest prose stylist on the Court, even by those who disagree with him vehemently.
Tony Mauro reports that some people took offense at the quip:

The comment raised eyebrows in the audience and offended some who were told about the remark afterward on the grounds that it perpetuates stereotypes about Mexicans.

We disagree. What stereotypes about Mexicans? Isn’t it the Irish who are the alcoholics — or maybe the Russians? The Mexicans, they’re just lazy.
Okay, we jest. But seriously, Justice Scalia’s comment is no more offensive than if the case involved an Irish petitioner and he referred to Guinness, a Filipino petitioner and he referred to San Miguel, or a French petitioner and he referred to Bordeaux wine. Tequila is simply “Mexico’s national drink” (see here).
More explanation from the informative Viva Tequila website:

Tequila is a Mexican liquor distilled from the fermented juices obtained from the hearts of blue agave plants grown in the Tequila Region. The liquor gets its name from the town of Tequila located in the state of Jalisco where production started more than 200 years ago…

The brand “tequila” is controlled by the Mexican government. Anybody interested in its production must comply with strict regulations set forth by the Secretary of Economy (formerly Secretary of Industry and Commerce) who has delegated authority upon the Tequila Regulatory Council…

Justice Scalia mentioned tequila simply because it is a leading liquor in Mexico, where the petitioner currently resides, and where he’s serving out his term of supervised release. There is no ethnic slur here. People need to chill.
Update: More great examples of national beverages in this comment.
Further Update: Some excellent thoughts from Orin Kerr, plus relevant excerpts from the transcript. (SCOTUS transcripts are now available online, for free, shortly after the argument. YAY!)
Justices Ponder Conditions for Automatic Deportation [New York Times]
Tequila Mockingbird: Justice Scalia opens the 2006 term with a bang [Slate]
Scalia’s ‘Tequila’ Remark Raises Eyebrows During Immigrants’ Rights Argument [Legal Times]
Viva Tequila [official website]

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Poker-Playing Attorneys

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Justice Douglas played poker with FDR, as Justice Scalia noted in his refusal to recuse himself over his duck-hunting trips with Vice President Cheney. Scalia himself has a famous poker game that once included regular attendees Justice Rehnquist and William Bennett. Judge Kozinski often hosts poker nights for law students when he’s on the road. Blogging law professors Stephen Bainbridge, Victor Fleischer, and Josh Wright have admitted to the poker jones. Northwestern professor Steven Lubet tried to cash in on the Father’s Day market with his book Lawyers’ Poker: 52 Lessons that Lawyers Can Learn from Card Players, which is getting recent publicity. And I’m reliably informed that once upon a time before they got cold feet, the DC office of O’Melveny & Myers had a summer-associate program where a bus was chartered to Atlantic City, and attorneys played intense hold ‘em games on the ride using $100-bills as chips.
Other poker-playing attorneys are more noted for their poker-playing. Greg Raymer had a day-job as a patent attorney at Pfizer when he took down the $5,000,000 first place prize at the World Series of Poker main event tournament in 2004; as Evan Schaeffer noted, years earlier, Raymer suggested that attorneys made better poker players.
Another poker-playing attorney is Russell Rosenblum, a former Kirkland & Ellis summer associate. Rosenblum has his own real estate practice in Maryland, owns a handful of Five Guys burger franchises, has enough incriminating photos of Washingtonian magazine editors to get five separate mentions in the magazine (including two profiles) in the last five years, and has a couple of six-digit prizes for final-table finishes in big poker tournaments, including the 2002 World Series of Poker main event.
Know other notable poker-playing law-talking people? And are Republicans really better players than Democrats? Play along in the comments.

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The Eyes of the Law: Justice Ginsburg at the Opera

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ruth bader ginsburg.gifThis just in: A possible sighting of Justice Ruth Bader Ginsburg!!!

I have an unconfirmed rumor that RBG was at the Kennedy Center’s performance last night of Sophie’s Choice: The Opera. Can you confirm this? Apparently the justice has been spotted before at the opera there.

Such a sighting would not surprise us. Justice Ginsburg’s love of the opera is well-known. It’s an interest she shares in common with her jurisprudential opposite, Justice Antonin Scalia, and the two jurists bond over it. They have even made cameo, non-singing appearances in various D.C. opera performances over the years.
So it would not surprise us to learn that Justice Ginsburg was at the Washington National Opera last night. Earlier this month, Ruthie was sighted at the company’s opening night gala dinner.
If you can confirm this sighting, please email us (and we will update this post if and when we receive such confirmation). Thanks.
We doubt we’ll check out “Sophie’s Choice” once we’re back in Washington. As DCist notes, the work “met with considerable critical disapproval after its 2002 world premiere in London.” The Washington Post’s recent review of the D.C. production calls it “a study in endurance” — at three and a half hours, with only one intermission.
If Justice Ginsburg went to “Sophie’s Choice,” did she enjoy herself? We hope that, at the very least, she didn’t fall asleep — as she did during an oral argument last Term
Even if the production may be problematic, we do like this quip from the programme notes of the London staging: “Life is messy, like masturbation.”
Justice Ginsburg, can you please pass the Kleenex?
Friedkin Toasts Opera Stars’ Talent [Washington Times]
Sophie’s Choice Opens Tonight [DCist]Opera Review: Sophie’s Choice [Guardian Unlimited]
A Searing Sophie’s Choice: WNO’s Production Is A Study in Endurance [Washington Post]
That White Ruffle Thing Is Great for Catching Drool [Wonkette]

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Non-Sequiturs: 09.19.06

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cannon.jpg* We haven’t bothered to mix it up with our various critics, mostly out of sheer laziness. You don’t read us, we don’t read you; it’s a fair trade. But the description of the fracas in Blawg Review #75 makes launching a “blog war” sound kinda fun. [Concurring Opinions]
* Now we know why bankers are richer than lawyers. [TaxProf Blog]
* Happy “judicial anniversaries” to Justice Scalia (20 years on the Court) and Justice Thomas (15 years on the Court). [Confirm Them; Confirm Them]
* Halliburton to employee injured in Iraq: We’ll help you get that medal; just promise not to sue us. [TortsProf Blog]
* Tailgating with the Elect — what could be more fun? [Southern Appeal]
* If you want to go back THAT far, credit should be given to the Superhotties of the Federal Judiciary (July 2004). [Shoelover]

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Lawyerly Lairs: Chief Justice Roberts’s Island Hideaway

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port clyde.jpgWhen the Supreme Court isn’t in session, many of the justices — such as Justice Scalia and Justice Kennedy — traipse off to Europe. But Chief Justice John G. Roberts, showing his diligence, sticks around town (at least more than his colleagues). He was recently spotted at work on a Sunday.
When he does travel, look for him not in the Old Country, but in New England. Chief Justice Roberts recently acquired a house on a small island off Port Clyde, Maine (pictured). Tony Mauro has the details:

Roberts and his wife, Jane, paid $475,000 in June for a two-acre property and roughly 1,300-square-foot house on the island. The seller was Steve Thomas of “This Old House” TV fame.

The island is reachable by boat, and that has proved to be a bit of a problem for Roberts. In a brief interview on the subject of his new home, Roberts joked that he had trouble achieving the right ratio of gas to oil for his boat’s motor on a recent trip. The main reason for the miscalculation, he said with a laugh, was that when he asked around to be sure how many pints there are in a quart, most people told him four — instead of two, the correct answer.

It’s nice to know that we’re not the only folks who struggle with measurements. So does the brilliant Chief Justice!

[Roberts] no family connections in Maine. But Roberts said his family has vacationed in the area in two of the past four years and decided to take the plunge. Kevin Lipson, a partner at Roberts’ former law firm Hogan & Hartson, owns a house on the island and introduced him to the rustic retreat several years ago.

Town assessor’s agent James Murphy Jr. describes Roberts’ house as “pretty average,” a one-story structure built in 1965 but remodeled a few years ago. It also has an “outbuilding,” Murphy adds, but he is quick to assure that it is not an outhouse but a shed.

Sounds like a perfect place for clerks’ quarters, should JGR ever invite them out to his retreat.
While the island sounds lovely, we’re a little disappointed that the Chief’s pad is a “pretty average” house, built in the dreaded 1960′s, and worth under $500,000. We were expecting something a bit more grand.
We just hope it’s less decrepit than that other New England SCOTUS home: Justice Souter’s dump house.
Courtside by Tony Mauro: Paradise Island [Legal Times]

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ATL Week in Review

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erisa beauty queen.jpg* Our first annual ERISA Hotties Contest is over, and America’s hottest pension and employee benefit lawyers have been crowned. Some other great candidates were passed over; but hey, not everyone can win.
* The new season of Survivor: an exotic Cook Islands setting, interracial conflict — and hot Asian lawyers.
* Practice pointer: When preparing a witness for a deposition, advise him not to drop the F-bomb.
* Wachtell Lipton just doled out midyear bonuses to its lucky (and hard-working) associates.
* Summer associates: still as wild and crazy as ever. And occasionally moronic, too.
* Law firm nicknames: Is your firm on the list?
* Sorry, right-wing gunners: Justice Scalia is done hiring his clerks for October Term 2007.
* Viet Dinh, the Georgetown law prof and former OLP kingpin advising VC god Thomas Perkins in L’Affaire HP, really loves hugs — and nice real estate.
* Outstanding discovery requests: Fashion Victims, Internal Memos, Legal Celebrity Sightings, Skaddenfreude.

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