Balkinization  

Wednesday, November 02, 2011

Minneci v. Pollard & Justice Scalia's Honor

Jason Mazzone

Maybe you had to be there.

I read with interest the transcript from yesterday’s oral argument in Minneci v. Pollard, a case involving a Bivens action from a federal prisoner against (private) prison officials based on allegations of mistreatment following an incident in which the prisoner broke his shoulders during kitchen duty. I thought before the case was argued that the Court would not be receptive to this Bivens claim because the prisoner likely has a remedy under state tort law. The transcript of the oral argument confirmed the initial impression I held of the merits of the case.

I was very surprised later to read Mike Sacks’ column reporting on the oral argument. Sacks emphasizes that during the argument the prisoner’s attorney, Jack Preis, offended Justice Scalia and that Chief Justice Roberts in response defended (in Sacks’s words) Scalia’s honor by going after Preis.

The transcript doesn’t suggest that is what actually transpired and even if it did we shouldn’t care.


Here is how Sacks describes the key moments in the argument in Minneci:

"So if there is one state that would not have an adequate remedy for any single bad thing that could happen in prison, there is a Bivens action for everybody for everything?" asked Scalia.

Yes, Preis answered.

"Wow," Scalia responded. "I certainly wouldn't want to hold that."

Without missing a beat, Preis shot back, "I'm not surprised that you wouldn't want to hold that, your honor."

This much, of course, was true: Scalia in past opinions has advocated abandoning Bivens altogether as a "relic of the heady days" of a more liberal Court. Preis' remark provided some comic relief for the audience, but all nine justices stared sternly back at him. Chief Justice John Roberts slowly pivoted his displeased glare from Preis to a similarly displeased Scalia and back to Preis, setting in motion a particularly intense round of questions from the chief apparently designed to prove that it's a grave mistake for any lawyer to defy the fiction that every justice is open to persuasion at oral argument.

Roberts pulled out Preis' brief and read aloud a section in which the lawyer had quoted an earlier case to support [his client’s] argument. Roberts then produced the decision in that earlier case and read the full sentence containing the quote Preis had used, noting that the opposing lawyer had accused Preis of distorting the earlier case's meaning. Looking back up at Preis, Roberts said, "I just wanted to give you a chance to reply to what I think is a fairly serious assertion." Preis futilely tried to assuage the chief and finally sputtered out, "Your honor, I guess I certainly took part of the quote and didn't use all of the quote."

"That's known as misquoting," Scalia interjected, capping off the chief's dressing down of Preis for indecorously stating the obvious several minutes earlier.

The transcript does not, of course, tell us about all nine Justices staring sternly or about the Chief’s pivoting glare of displeasure. Perhaps these really were dramatic moments in the courtroom that day, worthy of a reporter’s column.

What the transcript does suggest is that Preis was exceedingly polite and appropriately deferential during his entire argument--in a case in which he was confronted by deep skepticism from the Justices and pretty heated questions. There is no sense at all from the written transcript that I read that Preis crossed any line.

Moreover, Sacks's account gives the impression, dramatically, that the Chief’s questioning of Preis about his brief occurred immediately after Preis’s exchange with Scalia. But that’s not how it happened. Instead, after Preis’s purportedly offensive line (“I’m not surprised that you wouldn’t….”), Justice Breyer says: “I would find that rather surprising, too, actually” (followed by laughter). Then, Breyer asks Preis questions about the evidence that state law does not provide an adequate remedy. Scalia next follows up by asking Preis why it isn’t his burden to make the requisite showing. After those exchanges, Preis asks to shift gears to take up a separate line of cases. It’s only at that point that Chief Justice Roberts invites Preis first to address his opponent’s contention that he misrepresented an earlier decision. And to Scalia’s suggestion that Preis misquoted that decision, Preis says “Well, your Honor, I guess I would respectfully differ.”

In sum, if there was a rebuke from the Chief it was a slow time coming and pretty polite at that.

And so what if Preis’s response to Justice Scalia provoked stern stares and displeased gazes? Supreme Court Justices are not kings and queens and the Court is not that of Henry VIII or the Queen of Hearts. It’s an argument, after all. Lawyers who appear before the Court have a short period to get their points across on behalf of a client. The questions are fired rapidly from all directions and if in the rough and tumble of the moment a voice is raised or a less than golden sentence is ushered, so be it. The Justices are grownups and for the lawyer who really does cross the line they have plenty of power to do something about it. Anyone who thinks Preis was even close to the line in his argument should listen to recordings of Alan Dershowitz’s oral arguments available at Oyez.

Despite the high bench, the big red curtain, and the lines out the door, arguing at the Supreme Court is not visiting the Wizard of Oz. And Justice Scalia’s honor doesn’t need defending by the Chief Justice--or by journalists.









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