From the Left and the Right on Argument and Collegiality

Two recent interviews of two Supreme Court Justices, one on right–Clarence Thomas–and one on the left–Elena Kagan, both in agreement that you can disagree, yet be agreeable.

Here’s Kagan:

In the following video, Thomas also discusses civility on the Court. Because his comments come about 22:30 minutes into the video, I’ve cut and pasted that part of the transcript. Like Kagan, he praises the collegiality of his colleagues. A lesson for the rest of us maybe?

Thomas: You know, it should be mysterious. I can still remember the first time I set foot in that room and those doors closed. I mean, my goodness, it’s pretty daunting the first few times. Because that’s where the actual work and the decision-making takes place. It’s just the nine, there’s no staff, no recording devices. And we vote in descending order of seniority. It is a process in this city, normally when I was a staffer, you always had assistants around. And, people are engaged –they actually talk about the case. They actually tell you what they think and why. You record the votes. And there’s some back and forth– there’s more now. When Chief Justice Rehnquist was here, he moved it along very quickly. Now there’s more back and forth, more discussion. We normally have one break and there’s more discussion, off to the sides, about cases. And to see people who are trying their best to decide hard things and feel strongly about their view of it, is fascinating. And the thing that’s been great is, I just finished my 18th term, and I still haven’t heard the first unkind word in that room. And you think what we’ve decided–life and death, abortion, execution, war and peace, financial ruin, government relationship with citizens. You name it. We’ve decided it. And I still have not heard the first ad hominem in that room. It is an example of what I would have thought decision-making would be at the higher levels of civil government in all parts of our country.

SWAIN: What ensures that decorum?

THOMAS: The human beings on this Court, and people who, in one way or another, one degree or another understand that it’s not about them. It’s about the Constitution, our country, and our fellow citizens, that they don’t take themselves as seriously as they take the work of the Court.

SWAIN: We’ve learned a lot about the many traditions this Court holds and its processes that are passed down from Court to Court. And some of those happen in the conference room, such as the handshake. How important are symbols and traditions to the process that happens here?

THOMAS: I think the handshake, whether you’re in sports or church or other activities, it means something. It still means something. We can sense when somebody’s phony and they don’t mean it. These people, in this room, are genuine. It’s warm and professional. There’s always a handshake before we go on the bench. When we see each other and we haven’t– its the first time during the day– we always make sure to shake hands, whether it’s in public or in private. There’s sort of a sense of courtesy and decency and civility that’s a part of it. On the days that we work, whether we’re on the bench or we are in conference, we go to lunch together. In the early years when I first came here, we had that lunch in a small room off the main dining room. Justice O’Connor insisted that we have lunch every day when we were sitting. And she insisted, “Now Clarence, you should come to lunch.” And she was really sweet, but very persistent. And I came to lunch– and it was one of the best things I did. It is hard to be angry or bitter at someone and break bread and look them in the eye. It is a fun lunch; very little work is done there. It’s just nine people, eight people, whoever shows up having a wonderful lunch together. It is wonderful. So the traditions, I think, are important. It’s like traditions in our society, in our culture. They developed over time for a reason. And it helps sustain us in the other work that we do, I think. They help sustain us.

Here’s a link to the Thomas’s C-Span interview.

Cross posted from

You Say Tomato; The Court Says No Dealio!

A few years back, Carol Bond decided to literally burn her husband’s lover, a woman who had figuratively burned her. Besides carrying on (or as a direct consequence of) an affair with Mr. Bond, the lover carried Mr. Bond’s child. To balance the scales of justice, Carol Bond used a concoction of potassium dichromate and 10-chloro-10H-phenoxarsine to paint door nobs, mail boxes, and sundry other objects the lover might touch. Lover girl suffered a thumb burn as a result. Mrs. Bond? Well, her troubles had just begun.

Federal prosecutors charged Bond with two counts of mail theft and, surprisingly, two counts of possessing and using a chemical weapon, in violation of section 229(a) of the Chemical Weapons Convention Implementation Act, a law Congress enacted pursuant to a chemical weapons treaty. Bond was convicted on all counts but appealed her conviction under the Chemical Weapons law–all the way to the Supreme Court, as they say. Twice. Today the Court overturned her conviction, saying

In sum, the global need to prevent chemical warfare does not require the Federal Government to reach into the kitchen cupboard, or to treat a local assault with a chemical irritant as the deployment of a chemical weapon. There is no reason to suppose that Congress—in implementing the Convention on Chemical Weapons—thought otherwise.

Unfortunately, the Court did not see fit to use this opportunity to rein in Congress’s power, something on which Justice Scalia had a few things to say in his concurring opinion, the gist of which you can get by reading his opening salvo (citations omitted):

Somewhere in Norristown, Pennsylvania, a husband’s paramour suffered a minor thumb burn at the hands of a betrayed wife. The United States Congress—“every where extending the sphere of its activity, and drawing a ll power into its impetuous vortex”—has made a federal case out of it. What are we to do?

It is the responsibility of “the legislature, not the Court, . . . to define a crime, and ordain its punishment.” And it is “emphatically the province and duty of the judicial department to say what the law [including the Constitution] is.” Today, the Court shirks its job and pe forms Congress’s. As sweeping and unsettling as the Chemical Weapons Convention Implementation Act of 1998 may be, it is clear beyond doubt that it covers what Bond did; and we have no authority to amend it . So we are forced to decide—there is no way around it—whether the Act’s application to what Bond did was constitutional.

Of course, Scalia (and Thomas and Alito) would have ruled the law unconstitutional. Justice Roberts, writing for the majority thought otherwise–he seems to be re-writing a lot of laws for Congress these days. And so, Congress, expansive power at the ready, lives to ride another day.