Supreme Court Watch At the Supreme Court, it's still Scalia v. Breyer Two justices often spar with one another

By Kimberly Atkins

The Daily Record Newswire

BOSTON, MA -- Sometimes U.S. Supreme Court Justices Antonin Scalia and Stephen Breyer give new meaning to the term "oral argument."

During the first week of arguments in the recently concluded term, for example, the justices considered whether the Confrontation Clause allowed a shooting victim's statement identifying the gunman -- made hours before he died -- to be admitted as evidence.

"What keeps that out?" asked Breyer during arguments in the case Michigan v. Bryant. "I mean, assuming that [the statement was] admitted as an exception to the hearsay rule, why should the Confrontation Clause bar it?"

Scalia answered before the attorney standing at the podium could.

"I think your answer, counsel, is that we decided that in Crawford [v. Washington], from which Justice Breyer dissented," Scalia replied.

"Suppose I think we didn't?" Breyer countered.

"Perhaps there is another answer that I would like to hear," piped in Justice Anthony Kennedy, trying to bring the lawyer back into the conversation.

Breyer turned back to the attorney, but still was clearly making a point to Scalia.

"I would like to hear your answer because I don't think we decided it in Crawford," Breyer said, clearly irritated.

Chief Justice John G. Roberts, acting as bench referee, broke up the spat to allow the lawyer to get a word in edgewise.

"Now is a good time to try to jump in, I think," Roberts said to the lawyer, drawing laughs from the audience and other justices.

Listen to their exchange:

During oral arguments, and even in written opinions, Justices Scalia and Breyer often assume the part of the Court's "Odd Couple," vocally expressing their differences, trading lighthearted jabs and even expressing outright irritation at each other's points of view -- all the while maintaining a level of professional respect.

Oral argument bench battles

While normal protocol provides that justices speak only to the arguing attorneys, Breyer and Scalia sometimes use their questions to counsel to trade barbs at each other.

During oral arguments in the Speedy Trial Act case U.S. v. Tinklenberg in February, Breyer asked whether defendants should get the benefit of a recent amendment to Rule 45 of the Federal Rules of Criminal Procedure.

"His case [was] still on appeal. Why shouldn't he get the advantage of the new rule?" asked Breyer.

Scalia answered Breyer's question before the attorney had a chance to speak.

"May I suggest that perhaps the reason not to do it is, assuming this person was treated entirely fairly on the basis of the law that existed at the time, [that] the consequence of what Justice Breyer proposes is to set free someone who has been duly convicted of a crime?" Scalia posited.

"Although all this is quite true, what Justice Scalia says, normally we do apply new rules to those who are on appeal at the time," Breyer replied.

"I don't agree with that," Scalia said, before turning to the attorney arguing the case, Matthew D. Roberts, assistant to the solicitor general. "Do you agree with that?"

Roberts paused for a moment, spurring the chief justice to step in once more.

"Do you agree with that?" Chief Justice Roberts asked, drawing laughter from the crowd.

"I don't think that this is a new rule of law that you're talking about," attorney Roberts replied.

In some instances, the justices break practice entirely and speak directly to one another.

In April, Breyer questioned New York Solicitor General Barbara Underwood during oral arguments in the global warming case American Elec. Power Co. v. Connecticut.

"Why is it less intrusive to try to get into the details of how an electricity company will in fact run its operation, than to say all you have to do is make a change in the dollar sign that you charge for your product?" asked Breyer.

After Underwood replied, Scalia took aim at Breyer's question.

"I wish Justice Breyer had made this argument in the EPA case," Scalia quipped, drawing laughter from an audience that must have been familiar with the ruling in Massachusetts v. EPA, in which Breyer and Scalia found themselves on opposite sides.

In March, during oral arguments in the case J.D.B v. North Carolina, Breyer -- searching for guidance on whether age should be a factor in determining whether someone should be read the Miranda warning -- brought up his dissent in the 2004 case Yarborough v. Alvarado.

"You know the sentence I'm referring to in my dissent, presumably?" Breyer asked the attorney at the podium.

"Some people don't read the dissents -- he may not have read it," Scalia interjected, drawing laughter.

"I live always in hope," said Breyer.

Sparring in writing

The justices' sparring is even apparent in the Court's written opinions.

In AT&T Mobility v. Concepcion, Scalia wrote the opinion for a five-justice majority, holding that the purpose of the Federal Arbitration Act was to promote arbitration as an efficient and expedient dispute resolution tool. As such, he ruled, a state law requiring class-wide consumer arbitration proceedings be available was preempted by the Act.

"The overarching purpose of the FAA ... is to ensure the enforcement of arbitration agreements according to their terms so as to facilitate streamlined proceedings," Scalia wrote. "Requiring the availability of classwide arbitration interferes with fundamental attributes of arbitration and thus creates a scheme inconsistent with the FAA."

In his dissent, Breyer used the principle of federalism, which the more conservative Scalia often espouses, to hammer home his point that states should be allowed to limit mandatory arbitration clauses.

"[F]ederalism is as much a question of deeds as words," Breyer wrote. "It often takes the form of a concrete decision by this Court that respects the legitimacy of a state's action in an individual case. Here, recognition of that federalist ideal, embodied in specific language in this particular statute, should lead us to uphold California's law, not to strike it down. We do not honor federalist principles in their breach."

Published: Thu, Aug 4, 2011

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