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The typical Supreme Court oral argument lasts an hour, with the lawyer for the petitioner (whoever brought the suit) taking the first thirty minutes, and the lawyer for the respondent (the other party) taking the second. Each attorney stands at a podium when it’s his or her turn, and gives a presentation on their case to the nine justices. Or tries to.
That half hour isn’t just their time for making arguments, it’s also the justices’ time for questioning, and they can — and do — interrupt at any moment, for any reason. As an attorney arguing in front of the Supremes, you’re trying your best to get through the material you want to get through while also responding to any idea that pops into any justice’s mind. It’s a bit like batting in the World Series, but with every player on the opposite team hurling balls at your head.
It’s kind of awesome.
I’ve attended SCOTUS oral arguments only once, for a zero-profile case that a friend of a friend was arguing. (I took a road trip one other time and slept out all night trying to get in for Lawrence v. Texas, but a local college’s RA had brought her whole floor and we missed the cut.) The case I saw presented was a boring, technical, marginal one ultimately decided in a 9-0 decision, but seeing it argued in person was thrilling, strange, and — because I knew one of the attorneys — nerve-wracking even to watch.
The Supreme Court is, according to the Constitution, the final interpreter of the Constitution itself. If you don’t like what they decide, you’ve got to pass a constitutional amendment overturning them (something that’s ridiculously hard to do and hasn’t happened in four decades) or just sit tight and wait until they change their minds. And because there are only nine justices, and because they have so much discretion, changing one of their minds can change the course of history.
Supreme Court oral arguments are as close as an ordinary American can ever hope to get to watching the actual internal machinery of the federal government in operation. Whatever you think of that government, whatever you think of the institution of the Court itself, it’s impossible to observe it closely and not come away with a staggering sense of historical contingency.
Fisher v. Texas, the college admissions case SCOTUS heard argued last week, is a big deal. A win for the plaintiff, Abigail Fisher, could mean an end to affirmative action in higher education in the United States, a major transformation in the country’s colleges and universities, and an altering of the life opportunities of the next few generations of Americans. In arguing this case, the Supremes were arguing over not just higher education policy but over what kind of country we are, what principles will guide us going forward. They were arguing about the nature of race and the meaning of fairness, and because they’re the Supreme Court of the United States, they get to decide how those concepts operate in American law.
This is a big deal and a big, complicated case, and over the next week or so I’ll be making my way through the oral argument transcript, analyzing the most important (and weirdest) moments.
See you tomorrow for part one.
Earlier this morning, the UberFacts Twitter account posted the following tweet:
A letter was discovered in which the FBI urged Martin Luther King to commit suicide.
— UberFacts (@UberFacts) October 13, 2012
I learned about it a little while later because of a weird spike in my traffic — though the story is well documented and has appeared in a number of scholarly works it’s not particularly well known, and a post that I wrote about it earlier this year happens to show up near the top of Google’s searches for various phrases relating to it.
Anyway, like I say, it’s true. The FBI, under the direction of J. Edgar Hoover’s top deputy, sent Martin Luther King a blackmail package in November 1964 along with a letter urging him to kill himself to avoid the shame of the public disclosure of “your filthy, abnormal fraudulent self.”
The letter was timed to arrive shortly before King was scheduled to travel to Oslo to receive the Nobel Peace Prize.
The transcript of Wednesday’s oral argument was released that afternoon, and it’s fascinating reading. So fascinating, in fact, that I think I’m going to make a project of writing about it next week — a series of posts excerpting and discussing the most interesting exchanges.
In the meantime, I wanted to just highlight a couple of things.
First, the justices were clearly paying attention to the “standing” issue — the question of whether Abigail Fisher has a case she’s properly situated to bring before the Court. You can’t just decide to sue the government because you don’t like something they did. (If you could, everybody would be suing all the time, and the court system would collapse.) You have to show that you’ve been harmed in a way that the courts can fix, and the standards for what kinds of harm count in which circumstances are narrow and complicated.
I’ll go into this in a little more detail next week, but given the way I broke down the case’s possible outcomes in my last post, it’s worth underscoring that the Supremes may just rule that Fisher wasn’t harmed, or can’t be made whole, and show her the door. If that happens, we’ll go through all this again with another lawsuit brought by a better plaintiff at some point in the next few years — possibly with a different lineup of justices on the Court, and almost certainly with Elena Kagan able to participate fully.
Second, Justice Sotomayor was a pretty strong questioner in this, her first campus affirmative action case. Given that she got into Princeton as an affirmative action admit, and that she once described herself as “a perfect affirmative action baby,” that’s perhaps not surprising. But it seems to me that the impact of Sotomayor’s advocacy, and her life experience, may be felt more in the next phases of the process than it was in oral arguments. Sonia Sotomayor would not be sitting on the Supreme Court today if affirmative action didn’t exist, and that fact renders the Court’s dilemma in this case more concrete than it otherwise might be.
Yesterday I wrote a piece about a Tuesday evening meeting of the CUNY Queensboro Community College Academic Senate, but the piece wasn’t quite complete because I didn’t have confirmation of the vote results or final text of the resolutions. Well, I do now, and it’s pretty extraordinary.
To recap: A few weeks ago an administrator at QCC threatened to dismantle the college’s English Department and outsource its composition course offerings in retaliation for the department’s refusal to scale back its comp courses to comply with CUNY’s new Pathways curriculum initiative. The administrator in question eventually apologized, and the president of QCC kind-of sort-of walked back the threats.
Which brings us to Tuesday.
On Tuesday evening the Queensboro Academic Senate passed two resolutions in which they rejected the administration’s actions in the strongest possible terms. First, they denounced any attempt to shut down composition at QCC over the Pathways dispute, declaring that such a move would violate state law, put the college’s accreditation in jeopardy, and contravene various binding regulations and policies. That resolution passed in a nearly unanimous vote.
But it was the second resolution, which passed by a reported 44-12 margin, where the Academic Senate really laid down the law. That resolution began with an overview of the deep flaws in the Pathways program and the method by which the CUNY administration attempted to implement it, and then continued on to declare the faculty’s support for the QCC English Department’s refusal to compromise their academic integrity in the composition vote.
Looking forward, the Academic Senate declared that they would not participate in any further deliberations on the implementation of Pathways at QCC “until and unless Vice President Steele’s email outlining the consequences of the English Department vote is formally retracted” and the administration pledges in writing “that the academic judgment and academic freedom of the faculty will be upheld without reprisal.”
Finally, the resolution declared that “no curriculum, adopted by the faculty under pressure and constraint, should ever be interpreted by Administrative personnel … or any media organization as denoting any degree of faculty support for the Pathways initiative, which is overwhelmingly rejected by members of our faculty as harmful to our students and poor educational practice.”
The upshot of this is that the QCC Academic Senate is not merely on record declaring its opposition to Pathways, but also vowing not to even contemplate implementation of any of its provisions until the administration guarantees their freedom to resolve those issues to their own satisfaction in an open, free, and unencumbered manner.
The pushback against Pathways is heating up.
In the last little while a truly stunning number of Republican officials and candidates have gotten press for making stunningly horrible statements, from the Wisconsin state representative who said “some girls rape easy” to the Georgia congressman who called the big bang a lie “from the pit of hell” to the Arkansas legislator who called slavery “a blessing” to the other Arkansas legislator who pointedly noted that Jesus was okay with slavery before calling President Lincoln a marxist.
It’s been an interesting month. But I think this one takes the cake.
A few days ago it was revealed that Charlie Fuqua, a candidate for the Arkansas state House of Representatives, wrote in a recent e-book that the state should have the legal right to execute “rebellious” children, so long as the kids’ parents agree.
“The maintenance of civil order in society,” he writes,”rests on the foundation of family discipline. Therefore, a child who disrespects his parents must be permanently removed from society in a way that gives an example to all other children of the importance of respect for parents.” Quoting a passage in Deuteronomy which calls for the stoning of habitually disobedient children, he continues:
“In other words, the parents were required to take their children to a court of law and lay out their case before the proper judicial authority, and let the judicial authority determine if the child should be put to death. I know of many cases of rebellious children, however, I cannot think of one case where I believe that a parent had given up on their child to the point that they would have taken their child to a court of law and asked the court to rule that the child be put to death. Even though this procedure would rarely be used, if it were the law of land, it would give parents authority. Children would know that their parents had authority and it would be a tremendous incentive for children to give proper respect to their parents.”
This guy isn’t joking. And he isn’t some random crank. He’s a past member of the judiciary committee of the Arkansas House of Representatives. He’s received donations from several members of Congress, as well as financial support from the state party and a “Friend of the Family” award from the Arkansas Christian Coalition.
Oh, and check this out, from the bio on his book’s website: “Charlie Fuqua has worked for the State of Arkansas, Office of Chief Counsel, for 12 years handling child abuse and neglect cases. He has handled thousands of cases protecting children who had been neglected or abused.”
Apparently he doesn’t work there anymore, though. Whew.
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