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U.S. Supreme Court

Justice Ginsburg Lists Term’s Perplexing Oral Argument Questions

Posted Jul 26, 2011 6:00 AM CDT
By Debra Cassens Weiss

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Justice Ruth Bader Ginsburg has her own explanation for the U.S. Supreme Court’s refusal to televise oral arguments—it would shine a spotlight on the justices’ unusual questions.

In a speech (PDF) to the Otsego County Bar Association in Cooperstown, N.Y., Ginsburg said questions this past term ranged from the philosophical to the supernatural. JoshBlackman.com has Ginsburg’s list, including:

• “What [did] James Madison th[ink] about video games?” Posed by Justice Samuel A. Alito Jr. in Brown v. Entertainment Merchants Association. The court ruling in the case struck down a California law barring the sale of violent video games to minors.

• “What do you think about Satan?” Posed by Justice Antonin Scalia in Matrixx Initiatives v. Siracusano. The unanimous decision allowed an investor lawsuit that claimed the makers of Zicam should have disclosed reports that the cold remedy caused a loss of smell, even though the reported incidents weren’t statistically significant. The Satan question concerned whether rumors of Satanism would have to be disclosed to corporate investors.

• “Does al-Qaida know all this stuff?” Posed by Justice Antonin Scalia in NASA v. Nelson. The decision upheld background checks for NASA employees. Scalia asked the question after a lawyer for the employees said they worked in a “campus atmosphere” and they posed little or no security risk, the New York Times reported at the time.

• “Where is the 9,000-foot cow?” Posed by Justice Stephen G. Breyer in AT&T Mobility v. Concepcion. The decision held that the Federal Arbitration Act pre-empts a California common-law rule that allowed some consumers to avoid class-action waivers. Breyer’s question was part of a hypothetical involving a Swiss law only allowing the purchase of milk from cattle grazing in pastures higher than 9,000 feet, the New York Times reported in November.

Said Ginsburg, “From the foregoing samples, you may better understand why the court does not plan to permit televising oral arguments any time soon.” She also remarked on the presence of three women on the Supreme Court.

“I am now delighted to report that not once this term has an advocate called me Justice Sotomayor or Justice Kagan, and the same holds true for my junior colleagues,” she said.

The Wall Street Journal’s Jess Bravin and How Appealing linked to the speech.

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