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Heller Argument Playing Now:
At C-Span Radio.

  First comment, at 12:41: Listening to the argument for the first time, I'm somewhat puzzled by Dellinger's approach. He's treating this like a historical question of original intent or a law review article. But the Justices aren't historians or law professors, and they're clearly more interested in interpreting the Second Amendment in a practical sense as constitutional law. Dellinger is needing Souter to keep him on track (as Souter always does very ably when counsel arguing for a politically liberal result isn't catching the Court's vibe).

  Second comment, at 12:56: In the questioning of Clement, Kennedy makes perfectly clear that he agrees with the narrative of the purpose of the Second Amendment offered by gun rights proponents: The Second Amendment was enacted to limit the government's power to take away the peoples' guns given the importance of guns to self-defense and individual freedom.

  Third Comment, at 1:04: Interesting that there's so little discussion of the degree of scrutiny. Souter has to raise it when Clement's time runs out to make sure he covers it. Scalia seems to suggest that he would say there are exceptions to the right (such as machine guns, etc) but that apply strict scrutiny within the scope of the right.

  Fourth Comment, at 1:11: Roberts suggests that the Court shouldn't adopt a specific standard of scrutiny here; they can strike down the laws without needing to answer that directly. If Roberts ends up being in the majority, my guess is that he'll either write it himself or give it to Kennedy; Kennedy probably feels the same way, as his Lawrence opinion suggests.

  Fifth Comment, at 1:17: Gura isn't starting effectively: he's focusing on a very technical point, speaking very quickly, and I don't know if the Justices are even following what he's talking about. On the other hand, that may not be a bad thing; seems like he walks into his argument having five strong votes in his pocket, and he just needs to avoid losing them (which seems unlikely). Gura goes on for a few minutes until Breyer intervenes to ask a Breyeresque long hypothetical question that takes Breyer a few minutes just to ask.

  Sixth Comment, at 1:26: The respondent side of the argument is sort of boring, actually. It's mostly the libs asking questions, but they seem to know they won't get five votes so they're just asking for the sake of it rather than to try to find a majority view for their side. (Or maybe I'm just sufficiently convinced of that that I'm paying less attention — always a possibility.) One big moment is when Kennedy comes out and says he thinks Miller is "deficient" — he notes that Gura is being carefully consistent with it, but suggests that there's no need to be.

  Seventh Comment, at 1:49: Near the end of Gura's argument, they're dickering over degrees of scrutiny. But my sense is that it won't matter: Roberts presumably either writes it himself or gives it to Kennedy, and the Court won't need to answer degrees of scrutiny to affirm the DC Circuit.

  Eighth Comment, at 1:52: Dellinger in rebuttal gives a shout out to the 17th Street Hardware store, presumably the one just south of R. Great hardware store.

  Ninth Comment, at 2:01: As Dellinger finishes up, I tend to think that Heller is an example of advocates not really mattering in the biggest cases. This argument isn't Dellinger v. Clement v. Gura; it's Roberts v. Souter v. Kennedy v. Scalia v. Breyer. The Justices have thought through these issues for weeks if not months, and they know pretty much where they come out; none of the advocates seem to be getting much traction, but that's because the Justices are totally up to speed. I think this happens relatively often in the Supreme Court's biggest oral arguments, actually. By the time of oral argument, the lawyer could have read from the phone book for a half hour and obtained the same result.
Bklaw:
I love the hot bench. Dellinger is stumbling
3.18.2008 1:36pm
dearieme:
Will they throw water at each other?
http://women.timesonline.co.uk/tol/
life_and_style/women/beauty/article3575682.ece
3.18.2008 1:41pm
Jacob Berlove:
I had thought that Justice Souter's New Hampshire background might make him more sympathetic to gun rights...
3.18.2008 1:47pm
UW2L:
"So a total ban on books would be okay so long as there wasn't a total ban on newspapers?" Ouch. Well, that didn't go well for Dellinger, let's see how Clement does.
3.18.2008 1:53pm
Bklaw:
Agree with Orin Kerr. Dellinger needed Souter and Ginsburg to throw him some softballs. I love it where J. Kennedy asked him whether the 2nd Amendment was more or less restrictive than the prior English gun ban. Dellinger tried to dodge the question, and Kennedy had to nswer the question for Dellinger.
3.18.2008 1:57pm
Brian G (mail) (www):
Please post a link to the mp3 of the argument when it becomes available so I can listen on my iPod while I do some boring written discovery responses later on today.

Thanks!
3.18.2008 2:07pm
Dennis Nicholls (mail):
Has anyone seen a link to a written transcript yet? I have some hearing loss and those lossy-compression audio links are very difficult for me to understand.
3.18.2008 2:11pm
OrinKerr:
Dennis,

It's not out yet; try around 2 or 3 pm.
3.18.2008 2:14pm
Ernesto:
"Thank you, General."

Uhhh... wtf?
3.18.2008 2:15pm
BruceM (mail) (www):
So far I really think Scalia has the best understanding of the case and what's at stake here.

Ernesto: Clement is the U.S. Solicitor General. He's a General, just like the Postmaster General and Attorney General.
3.18.2008 2:19pm
Guest101:
Ernesto, are you not familiar with the absurd Washington pretension of referring to Solicitors and Attorneys General as "General"?

Whatever the outcome of this case, I hope the opinion is not a repeat of Kennedy's vacuous rhetoric in Lawrence. Swing vote or not, someone should take the man's keyboard away for all our sakes.
3.18.2008 2:22pm
OrinKerr:
Unsurprisingly, I disagree with BruceM. (I basically always disagree with BruceM, come to think of it!) Clement really isn't a General, any more than a Deputy Assistant Attorney General is a General, but it's become a common practice to call him "General". More on that here.
3.18.2008 2:23pm
Tony Tutins (mail):
Dennis: I'm watching it on C-Span (1)

Gura's really choking; I feel embarrassed for him. He's not really addressing the Court's concerns.
3.18.2008 2:24pm
Jeff B. (mail):
Referring to the Solicitor General as "General" is absurd because it demonstrates a misunderstanding of what the word "general" means in this case. It's not a noun, it's an adjective modifying "solicitor," as in the "general solicitor." It shouldn't even be a question of Washington pretension, it's a question of proper use of the language.
3.18.2008 2:24pm
Dilan Esper (mail) (www):
Roberts' 1:11 question tips his hand. He is not going to go along with strict scrutiny, and instead is going to uphold any regulation analogous to extant regulations at the time the Second Amendment was adopted. That's going to be a very gun control-friendly standard.
3.18.2008 2:25pm
Tony Tutins (mail):
I remember C. Everett Koop's being addressed as "General," which sounds particularly odd at the moment, because the acting Surgeon General is an Admiral.
3.18.2008 2:28pm
CDU (mail) (www):
Roberts suggests that the Court shouldn't adopt a specific standard of scrutiny here; they can strike down the laws without needing to answer that directly.
If the court takes this route it could make for an "interesting" couple of years. Any individual right decision in this case is going to unleash a wave of litigation against federal, state, and local gun laws. If the Supreme Court punts on the standard of review, it seems like that leaves the lower courts that are going to have to deal with all these post-Heller cases without much guidance. If the Supreme Court doesn't set a standard of review in this case, it'll probably take a few years for them to get another case that gives the opportunity to do so.

Just striking down the D.C. law probably would only really provide a roadmap for the most extreme gun control laws (Chicago immediately leaps to mind), but what about other restrictions? What about "assault weapons" bans like California's? What about right-to-carry? I can easily see a situation where the Ninth Circuit decides that some of California's fairly strict gun laws are constitutional while other circuits strike down much less restrictive laws in other states.
3.18.2008 2:29pm
Cory J (mail):
Here's how I learned those "other" generals are called generals. Apparently, the episode is actually making fun of Wilford Brimley's role as an Attorney General in some movie.

The Junk Mail episode:


Postmaster General: "Kramer, I've been, uh, reading some of your material here. I gotta be honest with you: you make a pretty strong case. I mean, just imagine. An army of men in wool pants running through the neighborhood handing out pottery catalogs, door to door."

Kramer: "Yeah! Ha ha."

Postmaster General: "Well, it's my job. And I'm pretty damn serious about it.

In addition to being a postmaster, I'm a general. And we both know, it's the job of a general to, by God, get things done. So maybe you can understand why I get a little irritated when someone calls me away from my golf."
3.18.2008 2:33pm
BruceM (mail) (www):
Orin: That's an interesting article, I wasn't aware there was an actual controversy over what sort of "general" (if any) non-military positions with "general" in the title are. It's certainly not unique to address the attorney general or solicitor general "general". Certainly Congress knows how to create high civilian positions with titles that don't include the word "general" in the title, and could have done so if desired.

Do you at least agree with me that based on Scalia's understanding he's got the right view of this case? Ehh prolly not.
3.18.2008 2:35pm
OrinKerr:
BruceM,

It's not unique; just wrong. This would have been obvious 200 years ago, and presumably it makes no sense to change the title of the position just because people no longer understand historical title usages.

As for Scalia's view, I'm not paying attention to it; he's not the swing vote. But if you agree with it, I assume it is wrong.
3.18.2008 2:43pm
therut:
Stevens is senile. Gura is not doing as well as I hoped. Breyer is a nut. The Court makes me ill. That is my commentary. I would think a machine gun is the devil.
3.18.2008 2:46pm
OrinKerr:
Therut,

Why would you think Stevens is "senile" and Breyer is a "nut"? Is that because they appear to disagree with you?
3.18.2008 2:48pm
Ernesto:
Ha, exactly my point! Thanks, Professor Kerr.
3.18.2008 2:50pm
Bill M:
Guru is really bad. Probably won't matter because it looks like he has 5 votes but they should have went with Ted Olson.
3.18.2008 2:51pm
Question:
Orin: Following up on CDU's post above, do you really think that the Court will reverse without setting out the standard?
3.18.2008 3:01pm
therut:
That was a very unexciting boring event. They should have convined a panel of 9 citizens to argue the case and maybe it would have been more intellectual and meaningful. Good Grief. No wonder the USSC is in the armpit of of public opinion. That would put most people to sleep. I have no idea what the 9 KINGS will proclaim from on high. Not much I bet.
3.18.2008 3:04pm
Wondering Willy:
Alan Gura did an absolutely outstanding job, in my opinion. He wouldn't let himself be pinned down by any of the liberals, which is exactly the sort of argument he needed to give after Dellinger was slaughtered.
3.18.2008 3:04pm
CWuestefeld (mail) (www):
Re Dellinger's claim that the 2A is aimed at national legislation: Why does the 1A limit who must not make laws ("Congress shall make no law") but the 2A carries a blanked restriction ("shall not be infringed")?
3.18.2008 3:12pm
dgs (mail):
Orin--I hope you are right on them not addressing the appropriate level of scrutiny. We filed an amicus brief in support of Heller that made that argument (but then said if they did address it, it should be strict scrutiny) on the grounds that the question crafted by the court did not raise it, it wasn't addressed by the D.C. Circuit, and that it hadn't been addressed by the lower courts and thus needed to "percolate". To my surprise, others did not really take this tact--you would think heller would be happy with a narrow ruling that there is an individual right and save the fight over scrutiny for another day. I think it was implicit in the narrow way they crafted the question for review that the court may have made a decision at the outset that the appropriate level of scrutiny was not before them (but few if any of the amici or participants seemed to agree). It seems like the petitioners really were trying to use the appropriate scrutiny issue as a trojan horse to perhaps "lose the battle, but win the war" by losing this case on the constitutionality of the ban but getting the court to agree the appropriate standard was "reasonableness." I don't know why the respondents were not more cognizant of this (they seemed to take the bait and argue this at length) and am still somewhat puzzled why the SG found it necessary to buy into "reasonableness" review. The SG could have just taken the narrow position that the level of review (and all the federal laws) were not before the court and just say the US agreed the second amendment guarantees an individual right--arguably such a ruling would not necessary put the federal laws regulating guns in jeopardy.
3.18.2008 3:12pm
William Spieler (mail) (www):
Having lived on R and 17th for my last two years of law school, I can wholeheartedly endorse 17th St. Hardware's services to the DC community.
3.18.2008 3:13pm
dgs (mail):
I meant "necessary". Along lines of above--Clark Nelly, one of Heller's attorneys just said that under the Second Amendment, the District could issue whatever "reasonable" regulations of firearm ownership it wanted!?
3.18.2008 3:19pm
gattsuru (mail) (www):
The feeling I get is less the Court punting scrutiny a few years down or applying something less than strict. It'd result in far too much out of their control, the former when a few districts end up declaring the NFA unconstitutional and the latter when people start suggesting other penumbras and emanations should have the same fate.

More likely, I see the official statement being strict scrutiny, but voiced in such a manner that nearly all restrictions will match the compelling government interest attribute. That'll leave a lot of variation from one district to the next, but keep the SCOTUS in more control.
3.18.2008 3:26pm
Tim Dowling (mail):
There are several examples of left-leaning scholars like Prof. Tribe who view the text and historical evidence as supporting an individual rights reading, even though that reading is in serious tension with their political preferences. Are there any right-leaning scholars who read the text and history as supporting a collective rights reading, but who strongly oppose gun control laws as a matter of policy?
3.18.2008 3:28pm
Asher Steinberg (mail):
Is there a place where you can hear the argument replayed? I missed the "live" feed.
3.18.2008 3:33pm
Wrinkle-Free Pants (mail):
As for Scalia's view, I'm not paying attention to it; he's not the swing vote.

Yes, Kennedy is assumed to be. But how do we know Breyer is definitely in the dissent?
3.18.2008 3:36pm
Lior:
The discussion of the implication to machine-gan buns was amusing. Everyone seemed to take on faith the argument that machine guns are not in common private ownership, and therefore may be constitutionally banned, where the cause of the lack of private ownership is the constitutionally suspect ban itself. Circular reasoning if I ever saw any.
3.18.2008 3:44pm
AnonLawStudent:
Are there any right-leaning scholars who read the text and history as supporting a collective rights reading, but who strongly oppose gun control laws as a matter of policy?

A: Robert Bork believes the Second Amendment only guarantees a militia right but opposes gun control for policy reasons.
3.18.2008 3:44pm
SeaDrive:

Referring to the Solicitor General as "General" is absurd because it demonstrates a misunderstanding of what the word "general" means in this case. It's not a noun, it's an adjective modifying "solicitor," as in the "general solicitor."


They don't call general officers of the army "Officer."
3.18.2008 3:45pm
Ian Argent (www):
Remember the origin of the term General - as SeaDrive notes - it's a contraction of General Officer; as in Captain General, Lieutenant General, and Sergeant-Major General... (or even Colonel General in some traditions).
3.18.2008 3:54pm
sjalterego (mail):

They don't call general officers of the army "Officer."


Just because you change the order Solicitor General vs. general officer doesn't change the fact that the word "General" is, in both cases, an adjective meant to modify the other word. A Solicitor General is similar to an Attorney General:, i.e., a Solicitor or Attorney who handles General matters (i.e. ALL legal matters that come before him/her).

What is confusing is that in the U.S. the word general has come to also mean a specific rank when applied to the Armed Services
3.18.2008 3:55pm
rodrigo (mail):
I thought Dellinger was weak and his whole militia argument was puzzling. Gura stumbled a bit out of the blocks but overall did a great job, particularly in the second half of his argument. He was the only one up there today appealing for common sense and it was great to hear (Breyer?) agree. 5-4 (or possibly 6-3) for Heller.
3.18.2008 4:17pm
zippypinhead:
Kennedy's disparagement of the Miller test may be a fairly elegant way around the discomfort some Justices -- and the Solicitor General -- appear to have over a Heller holding that could also eventually jeopardize regulations such as the 1934 National Firearms Act. Miller was a procedural nightmare that the Court never would take today, and the holding was rather disingenuously based on the absence of record evidence that clearly could have been supplied on remand if there had been a live defendant (on the question whether short-barreled shotguns were useful military weapons, see, e.g., the use of the "trench gun" in WWI).

If Miller's reasoning either was repudiated or was limited only to (purely hypothetical, today) instances of "militia-related" exercise of the right to keep and bear arms, then the apparent concern with distinguishing between arguably permitted handguns versus machineguns could be more easily resolved. And abrogating Miller would make it easier to articulate (or avoiding articulating for now) a standard of review that preserves machinegun regulation while tossing out D.C.'s gun bans.
3.18.2008 4:17pm
JNS405:
I do really like that hardware store (17th Street).
3.18.2008 4:20pm
zippypinhead:

rodrigo wrote:
"5-4 (or possibly 6-3) for Heller."

Actually, on the threshold question of individual v. collective right, there's a chance of 7-2: Justice Ginsburg's limited questioning seemed focused on the effect of the standard of review on existing Federal law, right?
3.18.2008 4:23pm
George Weiss (mail) (www):
By the time of oral argument, the lawyer could have read from the phone book for a half hour and obtained the same result.

so lets all wait outside 48 hours ahead of time for the next one (x v NYC or y v chicago)-whether the 2nd applies to the states
3.18.2008 4:39pm
Kevin P. (mail):
AnonLawStudent:


Are there any right-leaning scholars who read the text and history as supporting a collective rights reading, but who strongly oppose gun control laws as a matter of policy?

A: Robert Bork believes the Second Amendment only guarantees a militia right but opposes gun control for policy reasons.


Bork has since changed his mind, joining an amici brief on behalf of Heller, which argues that the Second Amendment protects an individual right.
3.18.2008 4:42pm
Bart (mail):
Divining questioning is always a hazardous exercise, but there may be up to 7 votes finding an individual right. From there it gets tricky.

It appears that 1-2 of the libs may find a nominal individual right, but could attempt to apply a rational basis standard to preserve the DC prohibition.

Kennedy and Roberts do not appear to believe that the Court needs to set a standard of review because a firearm prohibition would fail any standard of review for a right to keep arms. Alito is more of an incrementalist and would probably concur.

Scalia appears to be leaning toward applying the same strict scrutiny applied to the First Amendment. I would think Thomas might concur.

The Kennedy and Roberts position offering a narrow ruling and punting the hard stuff down the road will probably prevail.
3.18.2008 4:58pm
anym_avey (mail):
The word 'general' is in the dictionary as a noun, indicating that a majority of people recognize it when it is used as a noun. Therefore, language has changed and 'general' is a noun as well as an adjective.

For those of you still arguing otherwise, I will make a conscientious effort to keep off your lawn, but I refuse to turn down the music. You're half deaf anyway.
3.18.2008 5:18pm
wuzzagrunt (mail):
dgs wrote:

Orin--I hope you are right on them not addressing the appropriate level of scrutiny. We filed an amicus brief in support of Heller that made that argument (but then said if they did address it, it should be strict scrutiny) on the grounds that the question crafted by the court did not raise it, it wasn't addressed by the D.C. Circuit, and that it hadn't been addressed by the lower courts and thus needed to "percolate". To my surprise, others did not really take this tact--you would think heller would be happy with a narrow ruling that there is an individual right and save the fight over scrutiny for another day. I think it was implicit in the narrow way they crafted the question for review that the court may have made a decision at the outset that the appropriate level of scrutiny was not before them (but few if any of the amici or participants seemed to agree). It seems like the petitioners really were trying to use the appropriate scrutiny issue as a trojan horse to perhaps "lose the battle, but win the war" by losing this case on the constitutionality of the ban but getting the court to agree the appropriate standard was "reasonableness." I don't know why the respondents were not more cognizant of this (they seemed to take the bait and argue this at length) and am still somewhat puzzled why the SG found it necessary to buy into "reasonableness" review. The SG could have just taken the narrow position that the level of review (and all the federal laws) were not before the court and just say the US agreed the second amendment guarantees an individual right--arguably such a ruling would not necessary put the federal laws regulating guns in jeopardy.


The problem (if it is one) is that there is a huge pent up demand, in some circles, for a ruling that acknowleges a broad individual right. This apparently had some of the amici swinging for the fences. I had read that Gura carefully structured the challenge to DC's ban, in such a way as to make the case not a referendum on gun laws in general. It seems even the Respondent's team has succumbed to the temptation to reach.

I, as much as anyone, would like to see the court conduct a scorched earth assault on pointless and unconstitutional gun laws, but agree with Roberts' position (if it is his position) that the court should only decide what they must decide. I wonder if there won't be some strong pressure--maybe a little horse trading?--from the pro-individual rights side of the bench to at least obliquely address the question of scrutiny, rather than leave that to Hillary's or Obama's court to decide. Is Roberts the kind of CJ who will draw lines in the sand? I hope so.
3.18.2008 5:25pm
Dennis Nicholls (mail):
The transcript is now up at the SCOTUS site:

3.18.2008 5:42pm
zippypinhead:
I got pinged by a friend (and Volokh lurker) who knows me, objecting to this line of my earlier post:

"If Miller's reasoning [was] limited only to (purely hypothetical, today) instances of "militia-related" exercise of the right to keep and bear arms, then the apparent concern with distinguishing between arguably permitted handguns versus machineguns could be more easily resolved." (emphasis added).

I have been ordered to confess error. If one assumes that the Second Amendment BOTH protects an individual's RKBA as well as a state's right to maintain a "well-regulated militia" against Federal interference, the "purely hypothetical" militia-related right I dissed may not be entirely hypothetical.

I was thinking about the National Guard, a creature of Federal law, as the only modern "well regulated militia," and assumed a "militia-related" RKBA is not a real issue today. No need for Second Amendment protection of a body that can be Federalized by Presidential order. BUT, my friend pointed out (and the ever-'authoritative' Wikipedia confirmed) there is actually a Virginia state militia, the "Virginia Defense Force," which under state law is a quasi-military body under the Governor's control. It has upwards of 700 volunteer sworn members, who do apparently drill and even have uniforms. It's mainly used as an auxillary to the Virginia National Guard.

If in a time of emergency the Governor calls up the VDF and orders them armed with select fire M-16s, the Second Amendment could come into play if the Federal government took exception to the VDF having machineguns in apparent violation of the 1934 NFA. Or so the argument goes. On second thought, yes, that's still pretty "hypothetical." I hope...
3.18.2008 5:45pm
Dennis Nicholls (mail):
Man I really HATE the "link" software at this site.


link
3.18.2008 5:45pm
Asher Steinberg (mail):
The word 'general' is in the dictionary as a noun, indicating that a majority of people recognize it when it is used as a noun. Therefore, language has changed and 'general' is a noun as well as an adjective.

General can be a noun, but in the context of the phrase 'Solicitor General' or 'Surgeon General,' it's an adjective. It's not like solicitor or surgeon are adjectives denoting what type of general the respective SGs are, in the same way that 'oil' is an adjective modifying the noun 'minister' in the phrase 'oil minister'; it's the other way around. The confusion stems from the word order. What Solicitor General really means is General Solicitor.
3.18.2008 5:48pm
Rich H (mail):
Only heard part of the argument, but focus seemed to be on meaning of the language of the 2nd amendment. Essentially, does language apply to military/militia purposes? Question: Whether it does or not, doesn't the ninth amendment cover keeping/bearing of arms, because historic practice then was to keep private arms? Shouldn't they have been looking more at historic practices? None of the amendments are meant to limit rights, but were added to assure skeptics that rights would not be limited.
3.18.2008 6:06pm
Jay:
"They don't call general officers of the army "Officer.""

Not sure how this is relevant, since no one in the American military has the title "general officer."
3.18.2008 6:14pm
Tony Tutins (mail):
For those who missed it, and have cable TV, CSPAN will replay the Heller oral arguments tonight at 8:01 pm and 12:17 am Eastern Daylight Time
3.18.2008 6:54pm
Redlands (mail):
Did c-span remove its audio recording of the Heller argument or is the website just overwhelmed?
3.18.2008 7:01pm
DonR (mail):
Jay,

In milspeak, there are three classifications of commissioned officer: company grade (second lieutenant through captain), field grade (major through colonel), and general officer (brigadier general {1 star} through general {4 star}) These are categories, not titles. The proper form of address for general officers is "general."

This holds true for the Army, Air Force, and Marine Corps. The Navy does things their own way.

Hope this adds to the discussion.

DonR
3.18.2008 8:05pm
Porkchop:

This holds true for the Army, Air Force, and Marine Corps. The Navy does things their own way.


When I was in the Navy, we called that "the right way." :-)

As I recall, Ensign through Lieutenant Commander (O-1 -- O-4) are referred to as junior officers, Commanders and Captains (O-5 &O-6) are staff officers (get modest scrambled eggs on the bills of their combination covers), and Admirals of all varieties (O-7 -- O-10) are flag officers (entitled to a personal flag and lots of scrambled eggs). LCDR's kind of get shortchanged, since their Army equivalents are "field grade" while they are still "junior" officers.
3.18.2008 10:02pm
Pub Editor:

I tend to think that Heller is an example of advocates not really mattering in the biggest cases. ... The Justices have thought through these issues for weeks if not months, and they know pretty much where they come out; none of the advocates seem to be getting much traction, but that's because the Justices are totally up to speed. I think this happens relatively often in the Supreme Court's biggest oral arguments, actually. By the time of oral argument, the lawyer could have read from the phone book for a half hour and obtained the same result.


I'll have to remember this the next time Tom Goldstein or Ted Olson explains why you need a Supreme Court appellate argument specialist to handle your case. I understand why you might want a team of former SCOTUS clerks working on your case during the cert petition stage and on the merits briefs. But if (in the big cases anyway) "[b]y the time of oral argument, the lawyer could have read from the phone book for a half hour and obtained the same result," then tell me why oral argument can't be handled by the attorneys who argued the case before the court of appeals or the state supreme court? For the "biggest cases," is there a rationale for hiring the latest incarnation of John W. Davis or Thurgood Marshall to handle the argument?
3.18.2008 10:05pm
CrazyTrain (mail):
Therut, Why would you think Stevens is "senile" and Breyer is a "nut"?

My answer would be that Therut does not know what he is talking about. Calling Breyer a nut is just a subjective judgment that is fair (although I very much disagree with it), but calling Stevens senile is absurd, because Stevens is not senile, and there is no evidence that he is. Indeed, he oftentimes seems to be the Justice with the best mastery of the case &record from the few questions he does ask (which are usually about some point that only someone who knows the record well would ask).

Although I am positive that no objective observer would believe Stevens to be senile, I am biased: I think Stevens is teh awesomest Justice evah and pwns Scalia everytime Scalia tries to take him on, and a sick part of me hopes McCain wins just so Stevens has to try to stick it out another four years.
3.19.2008 2:18am
CrazyTrain (mail):
Robert Bork believes the Second Amendment only guarantees a militia right

I don't think Bork believes the Constitution guarantees any individual rights so it's not really fair to cite him as an example here.
3.19.2008 2:20am
Jeffery W Wilson (www):
I read the transcript on the 18th, and listened to the audio this evening (the 19th). Alan Gura did a great job -- the audio version of his performance was even better than the transcript would suggest.
3.19.2008 11:45pm
Mike18xx:
When will this nonsense be over and done with, and Montana out of the Union?
3.20.2008 6:35am
mypharmalife (mail) (www):
Great
WBR,
Alex
http://world-pharma.pillsfm.com
My favourite pharma supermarket
3.24.2008 7:05am