One thing a sketch artist at the Supreme Court needs to look for is whether Justice Ginsburg is wearing a jabot or one of her increasingly large doilies around her neck. Today, for the first time I can recall, she wore neither. She appeared to be wearing a sparkly necklace of dark crystals. I couldn't quite make it out.
Below are a couple of sketches from the other case argued dealing with federal antitrust law and Georgia's state health care system, FTC v. Phoebe Putney Health System. Note again, Ginsburg sans jabot.
I've sketched Chief Federal Public Defender A.J. Kramer many times over the years, but always in U.S. District Court where he defended those accused of highly publicized crimes in DC. Today was the first time I've seen him argue a case before the Supreme Court. He did a good job, but the cards are stacked against his client.
BTW, the case concerned the statute of limitations on a conspiracy charge and I just have to insert this bit of dialogue from Seinfeld episode #307, The Cafe.
Kramer: Anyway, it's been two years. I mean isn't there like statue of limitations on that?
Jerry: Statute of limitations. It's not a statue.
Kramer: No, statue.
Jerry: Fine, it's a sculpture of limitations.
Kramer: Just wait a minute...Elaine, Elaine! Now you're smart, is it statue or statute of limitations?
Conservative lawyer Miguel Estrada, whose nomination to the DC Circuit by President George W. Bush was succesfully fillibustered by Senate Democrats, went out of his way to support liberal Supreme Court nominee Elena Kagan during her Senate confirmation. He called her "an impeccably qualified nominee", and wrote, "one of the prerogatives of the President under our Constitution is to nominate high federal officers, including judges, who share his (or her) governing philosophies". Later, in a letter to Senator Lindsay Graham, Kagan said of Estrada, "no one I know is a more faithful friend or a more fundamentally decent person".
The above sketch shows Estrada during today's arguments in a class action case, Comcast v. Behrend.
Yesterday's arguments in two cases from Florida were devoted to man's best friend, or more specifically his nose. At issue, does the use of drug-sniffing dogs sometimes violate the fourth Amendment's right "against unreasonable searches and seizures", or, as the State of Florida argues, are dogs 1. never intrusive, and 2. always reliable?
In the first case, Franky, a chocolate Labrador, was brought without a warrant to the porch of Joelis Jardines where he sniffed marijuana by the front door.
In the second case a German Shepherd named Aldo smelled methamphetamine on a truck driven by Clayton Harris. No privacy issue here, but Aldo's certification had expired.
With the rest of the federal government shut down today as hurricane Sandy bore down on Washington, the Supreme Court kept to its schedule and heard arguments in two cases. In the first case, pictured above, the ACLU's Jameel Jaffer argued that American citizens are harmed when their communications are intercepted under the new FISA Amendment Act.
The second case argued today concerns the resale of books. Normally one can sell or otherwise dispose of an actual printed copy without permission from the copyright holder, but in this case a foreign student at a U.S. university paid for his education by having his familly purchase textbooks in Asia at a lower price which he then resold for profit.
Justice Breyer, known for his elaborate hypotheticals, must have had hurricane Sandy on his mind, for during the first argument he asked Solicitor General Verrilli, "All right, fine. That's why i say certainly....it might not be a storm tomorrow. I mean nothing is certain." and during arguments in the second case, "Now, for example, I believe there is going to be a storm, but it hasn't started yet".
The Court has cancelled tomorrow's session. Tuesday's arguments will be heard on Thursday.
Nine years after deciding that race, though not quotas, could be considered in college admissions a new, somewhat more conservative Supreme Court is reconsidering affirmative action. The case against the University of Texas was brought by Abigail Fisher, a Texas high school student who says she was denied admission because of her race.
The first question for Fisher's attorney, Bert W. Rein, came from Justice Ginsburg, who along with Justices Breyer and Sotomayor, is expected to uphold the Court's earlier position on affirmative action in college admissions. Justice Kagan, whose empty chair can be seen on the right, is not taking part in the case.
The more conservative members of the Court, who had been mostly silent during Rein's argument, sprang into active questioning as Gregory Garre took the lectern to defend the university's program.
Justice Alito, a foe of affirmative action plans who replaced Justice O'Connor, the author of the Court's earlier opinon in Grutter v. Bollinger, asked Garre, "I thought that the whole purpose of affirmative action was to help students ...from underpriviledged backgrounds, ..."
"But you say ...it doesn't admit enough African Americans and Hispanics ...from priviledged backgrounds."
Replied Garre, "Because, Your Honor, our point is that we want minorities from different backgrounds"
Justice Kennedy, as usual the swing vote on which the case hinges, said, "So what you're saying is that what counts is race above all."
The term "critical mass", refering to the proportion of minorities in the student body, was bandied back and forth with both Garre and Solicitor General Verrilli trying to avoid making it sound like a number.
Justice Scalia to General Verrilli, "So we should stop calling it mass."
Verrilli, "I agree."
Scalia, "Call it a cloud or something like that."
SCOTUSblog's Amy Howe has the Plain English summary here.