November 15, 2004

Damn You, Will Baude

by PG

His query about instances of Justice Thomas's speaking up during oral arguments has tugged me into a procrastination activity I'd heretofore avoided: Oyez recordings. And the second legal writing memo's due, IRACs and all. Oy. (On the IRAC debate, I side with Will somewhat on the difficulty of fitting one's prose into its strictures, and very much with Heidi on the appeal of the application section, but admit Tony to be correct in saying that IRAC makes writing easy to digest. I just prefer fluffy, heartburn inducing souffles.)

To answer: Justice Thomas gets garrulous in the Oyez audio of NASA v. FLRA 40:00 to 47:03, ending in a crowd-pleaser line. Incidentally, Thomas has a nice voice; his quietness during arguments is unfortunate for aesthetic reasons even if not intellectual ones. In VA v. Black, Thomas didn't so much ask questions as make a statement. With a similar issue of racist symbolic speech in Capitol Square Review Board v. Pinette, he pipes up at 52:30 to debate the meaning of a Klan cross and talks about its being burned even though that wasn't at issue.

Crescat & Co. should appreciate this: Earlier in the oral argument, Justice Scalia asks at 8:05 if the Libertarian Party could have put up an unattended display or if the Square was restricted to religious holiday displays, and if they did, would there be a concern that the state was endorsing the Party? The poor attorney says there's no Establishment Clause for political parties, and then Scalia drags in the Nazis hind foremost.

I wonder if I could get a Diwali display into my hometown's public square as an "early holiday lighting ceremony"...

November 15, 2004 02:00 AM | TrackBack

Justice Thomas asks a crucial question late in the Apprendi argument. I don't have a time stamp handy, but his question was the essential one for the Court there: just what is the difference between a sentencing factor and an element? (Paraphrasing, of course.)

Posted by: Milbarge at November 15, 2004 09:35 AM

Do you have any piece of a direct quote? Just enough that I can find the portion on Westlaw....

Posted by: Will Baude at November 15, 2004 12:19 PM

Interesting coincidence that Apprendi's crime was firing several shots into the home of an African American family... calls to mind Scalia's claim in VA v. Black that "If you were a black man you'd rather see a man with a rifle on your lawn than a man with a burning cross." Anyone know whether Apprendi's victims agreed?

Westlaw has transcripts of oral arguments? Oh, here it is: SCT-ORALARG. For Thomas talking in Apprendi, scroll about 3/4 of the way down, to

QUESTION: Mr. DuMont, that's just the problem. You agree that if it's an element of the offense it goes to the jury.
MR. DuMONT: Yes.
QUESTION: You agree that if it's an enhancement it can go to the judge.
MR. DuMONT: Yes.
QUESTION: As a sentencing factor.
The difficulty I have is that nowhere have we defined what the distinction is between an element of the offense and an enhancement factor, and if you could do that in your few minutes it would be very helpful.

Posted by: PG at November 15, 2004 02:32 PM
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