The Supremes Soar

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One of the highlights of my 2011 summer was speaking to the Eighth Circuit Conference right after Justice Alito. My topic: Writing Highlights from the last Supreme Court Term.

Here are seven of those highlights, Oscars-style.

1. Best Verb (tie)

Samuel AlitoSnyder v. Phelps, dissent:

And as far as culpability is concerned, one might well think that wounding statements uttered in the heat of a private feud are less, not more, blameworthy than similar statements made as part of a cold and calculated strategy to slash a stranger as a means of attracting public attention.

Elena KaganArizona Christian School Tuition Organization v. Winn, dissent:

The majority shrugs off these decisions because they did not discuss what was taken as obvious.

2. Best Wit

John RobertsFCC v. AT&T Inc., opinion:

Adjectives typically reflect the meaning of corresponding nouns, but not always. Sometimes they acquire distinct meanings of their own. The noun “crab” refers variously to a crustacean and a type of apple, while the related adjective “crabbed” can refer to handwriting that is “difficult to read,” Webster’s Third New International Dictionary 527 (2002); “corny” can mean “using familiar and stereotyped formulas believed to appeal to the unsophisticated,” id., at 509, which has little to do with “corn,” id., at 507 (“the seeds of any of the cereal grasses used for food”); and while “crank” is “a part of an axis bent at right angles,” “cranky” can mean “given to fretful fussiness,” id., at 530.

3. Best Hypothetical

Elena KaganArizona Christian School Tuition Organization v. Winn, dissent:

Consider some further examples of the point, but this time concerning state funding of religion. Suppose a State desires to reward Jews—by, say, $500 per year—for their religious devotion. Should the nature of taxpayers’ concern vary if the State allows Jews to claim the aid on their tax returns, in lieu of receiving an annual stipend? Or assume a State wishes to subsidize the ownership of crucifixes. It could purchase the religious symbols in bulk and distribute them to all takers. Or it could mail a reimbursement check to any individual who buys her own and submits a receipt for the purchase. Or it could authorize that person to claim a tax credit equal to the price she paid. Now, really—do taxpayers have less reason to complain if the State selects the last of these three options? The Court today says they do, but that is wrong. The effect of each form of subsidy is the same, on the public fisc and on those who contribute to it. Regardless of which mechanism the State uses, taxpayers have an identical stake in ensuring that the State’s exercise of its taxing and spending power complies with the Constitution.

4. Best Short Sentences (tie)

Antonin ScaliaWal-Mart Stores, Inc. v. Dukes, opinion:

[The dissent] criticizes our focus on the dissimilarities between the putative class members on the ground that we have “blend[ed]” Rule 23(a)(2)’s commonality requirement with Rule 23(b)(3)’s inquiry into whether common questions “predominate” over individual ones. That is not so. We quite agree that for purposes of Rule 23(a)(2) “‘[e]ven a single [common] question’” will do. We consider dissimilarities not in order to determine (as Rule 23(b)(3) requires) whether common questions predominate, but in order to determine (as Rule 23(a)(2) requires) whether there is “[e]ven a single [common] question.” And there is not here.

Samuel AlitoSnyder v. Phelps, dissent:

Nor did [the Westboro Baptist Church Respondents] dispute that their speech was “‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’” Instead, they maintained that the First Amendment gave them a license to engage in such conduct. They are wrong.

5. Best Rhetorical Question

Stephen BreyerAT&T Mobility LLC v. Concepcion, dissent:

What rational lawyer would have signed on to represent the Concepcions in litigation for the possibility of fees stemming from a $30.22 claim?

6. Best Eerily Identical Transition Sequence

Clarence ThomasBrown v. Entertainment Merchants Association., dissent:

To be sure, the Court has held that children are entitled to the protection of the First Amendment, and the government may not unilaterally dictate what children can say or hear. But this Court has never held, until today, that “the freedom of speech” includes a right to speak to minors (or a right of minors to access speech) without going through the minors’ parents. To the contrary, “[i]t is well settled that a State or municipality can adopt more stringent controls on communicative materials available to youths than on those available to adults.”

Antonin ScaliaWal-Mart Stores, Inc. v. Dukes, opinion:

To be sure, we have recognized that, “in appropriate cases,” giving discretion to lower-level supervisors can be the basis of Title VII liability under a disparate-impact theory—since “an employer’s undisciplined system of subjective decisionmaking [can have] precisely the same effects as a system pervaded by impermissible intentional discrimination.” But the recognition that this type of Title VII claim “can” exist does not lead to the conclusion that every employee in a company using a system of discretion has such a claim in common. To the contrary, left to their own devices most managers in any corporation—and surely most managers in a corporation that forbids sex discrimination—would select sex-neutral, performance-based criteria for hiring and promotion that produce no actionable disparity at all.

7.  Best Tongue-in-cheek Ending

John RobertsFCC v. AT&T Inc., opinion:

We reject the argument that because “person” is defined for purposes of FOIA to include a corporation, the phrase “personal privacy” in Exemption 7(C) reaches corporations as well. The protection in FOIA against disclosure of law enforcement information . . . does not extend to corporations. We trust that AT&T will not take it personally.

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