When Loki, the god of constitutional mischief, is in the right frame of mind, the Supreme Court can be a fantastically fun place to be. With all the talk of judicial bitterness, anger, and recriminations, it’s easy to forget how much fun life tenure can be. Today is just one of those days.
Things get off to a warm and fuzzy start as the justices hand down three unanimous opinions. Unanimous! One is a ruling in favor of an Army reservist in his employment discrimination claim. The second hands a big win to a veteran who filed his benefits claim late. And the third involves AT&T’s claim that, for purposes of the Freedom of Information Act, it should be entitled to withhold information that might violate the company’s “personal privacy.”
Now, as you may recall, oral argument did not go all that well for the company that only really wanted to be treated like a real, live boy. And so it was, perhaps, no surprise that the Supreme Court ruled unanimously today that corporations do not have such a thing as “personal privacy” for the purposes of FOIA. What was surprising was Chief Justice John Roberts’ unanimous opinion for the court, which contains more laugh lines than Two and a Half Men—and half the coke.
As you may recall from oral argument, the chief spent the better part of the hour poking fun at AT&T’s claim that the adjective personal means the same thing as the noun person, such that the statute’s treatment of corporations as “persons” means that corporations are also somehow capable of getting “personal.” As he explained at argument, that claim makes no sense. “I tried to sit down and come up with other examples where the adjective was very different from the root noun,” he observed at the time. “It turns out it is not hard at all. You have craft and crafty. Totally different. Crafty doesn’t have much to do with craft. Squirrel, squirrely. Right? I mean, pastor—you have a pastor and pastoral. Same root, totally different.”
Today’s majority opinion continues this same jolly monologue, musing—with copious citations to Webster’s that “[t]he 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,’ ” and goes on to observe that “corny can mean ‘using familiar and stereotyped formulas believed to appeal to the unsophisticated,’ which has little to do with corn, (’the seeds of any of the cereal grasses used for food’).”
All of this would be more than enough hijinks for even a good day at the court, but upon reading the opinion in its entirety, it turns out that after robbing AT&T of its last vestiges of corporate personhood (at least for FOIA purposes) the chief’s rollicking good mood leads him to pen what may be the funniest closing sentences in opinion-writing history: “The protection in FOIA against disclosure of law enforcement information on the ground that it would constitute an unwarranted invasion of personal privacy does not extend to corporations. We trust that AT&T will not take it personally.”
This hilarity extends into today’s oral argument, in a case with little intrinsic hilarity. In a case from Oregon, the court is being asked to determine whether social workers need either a warrant, parental consent, or exigent circumstances in order to go into public schools and interview child victims (often the sole witnesses) in sex abuse cases. According to the state, sexual abuse is a unique crime in that it happens in the home and there is often only the single child witness, which means that questioning minors in schools becomes the most viable way to elicit the truth in a place in which they feel safe.
The 9-year-old child in this case was interviewed by a social worker and an armed law enforcement officer at her school, after suspicions arose that her dad was sexually abusing her. After a very lengthy interrogation about how he was touching her, the child and her sibling were removed from the home and sent to foster care. But the child later explained that she had lied and implicated her father so that she wouldn’t miss her bus home.
The 9th Circuit Court of Appeals decided that the Fourth Amendment was in fact violated when the child was questioned in the absence of a warrant, exigent (or emergency) circumstances, or parental consent. The child’s lawyers and the wide swath of groups that support her argue that this is the most consequential parents’ rights case to come before the court in decades, and that if the court allows children to be interrogated in this fashion at school, family privacy—and children themselves—will be in peril.
The problem for the court is that the appeals court sort of agreed: The Constitution had been violated, it found, but it also said that the officers were immune from civil liability, because of sovereign immunity and the principle that the state agents couldn’t have known at the time that they were violating the child’s rights. That means that the cops won at the appeals court, even though they lost, and that the entire appeal at the high court is probably moot. We spend a lot of time this morning looking at questions of mootness, standing, and Article III controversies, all of which suggest that the child—now 17 and residing out of state, and having scored only a “moral victory” at the appeals court—has no remaining interest in fighting this case.
Thus, the moment lawyer Carolyn A. Kubitschek rises to argue, on behalf of the child, that the whole appeal is moot, Roberts stops her in her tracks, asking, “Why are you here?” and adding—even before the first round of laughter dies down—”Why didn’t you just go away?” This will more or less be the theme of the day. The court seems to agree—almost, dare I say it, unanimously—that it can make this case go away somehow, and leave the really hard questions about the correct constitutional scope for interrogating children in schools for another day.
But, hey, it’s open-mike night, and the chief is really killing it. When Oregon’s wunderkind Attorney General John Kroger notes that Roberts had pointed out, only moments earlier, that the 9th Circuit’s ruling has created a “cloud of uncertainty” for law enforcement officials about how they may now question a child, Roberts interrupts him to say—of himself—”Well, I am not so sure he was correct.”
Even the marshals have stuff coming out their noses.
Later, when the justices briefly deign to get to the question of whether such interrogations in school are constitutional, Justice Sonia Sotomayor asks Kubitschek a series of questions about how long a child would need to be interrogated before it became an unreasonable seizure. (In this case the questioning allegedly took two hours.) When Kubitschek appears to be dodging Sotomayor’s questions, Justice Antonin Scalia hisses at her, “She’s helping you, I think!”
Scalia then proceeds to ask Kubitschek a lengthy question about her definition of the word seizure, noting how unhelpful it is for purposes of drawing a clear line. When he is through with his question, but before Kubitschek can respond, Roberts peers down at her earnestly and explains, “He was not trying to help you.”
Jump back, James Franco. I know who ought to be hosting the Oscars next year.
Sometimes, amid all the accusations of partisanship and bias and ugly ideological splits at the Supreme Court, it’s easy to forget that the justices are really just nine pretty funny people. And that as much as the justices may rage and fume among themselves, they are always capable of coming together to do battle against the one and only thing that terrifies them even more than each other: The 9th Circuit Court of Appeals.