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Joking at the Supreme Court

By David Oscar Markus

The WSJ Blog points out funny exchanges at the Supreme Court. I reprint their fun post here (by the way, our funniest judge -- according to the poll at the right -- is Chief Judge Moreno, by a wide margin...):

The Law Blog?s Laugh-In At the Supreme Court: Wow

Posted by Peter Lattman

The big news out of the Supreme Court yesterday concerned what they didn?t do. The justices declined to hear an appeal of a D.C. Circuit ruling that terminally ill patients who have run out of medical options have a constitutional right to try experimental drugs that have not yet received FDA approval. Here?s the NYT story and prior Law Blog coverage.

On the lighter side, let?s bring back a Law Blog feature in very low demand ? The Law Blog?s Laugh-In At the Supreme Court! The decidedly unfunny issue on the docket yesterday: federalism. The question, as stated by the Times: What happens when a state chooses to give criminal suspects more protection than the federal Constitution requires?

Leave it to Justice Scalia to make federalism funny. Yesterday, he asked Stephen McCullough, a lawyer for the state Virginia, about the line between valid and invalid state searches. With that, an avalanche of laughter ensued. Get ready to giggle, Law Blog readers!

Justice Scalia: Mr. McCullough, the proposition that you?re arguing, does it apply at the Federal level as well? Suppose ? suppose I think that my neighbor next door is growing marijuana and I have probable cause to believe that, all right? So I go in and search his house; and sure enough, there is marijuana. And I bring it to the police?s attention, and they eventually arrest him. Is that lawful search?

McCullough: If there is State action ?

Justice Scalia: I?m a State actor, I guess. You know ?
(Laughter.)

McCullough: If you have State actors ?

Justice Scalia: You know, a Supreme Court Justice should not be ?
(Laughter.)

Justice Scalia: ? should not be living next door to somebody growing marijuana. It doesn?t seem right.

McCullough: That?s not a smart neighbor.
(Laughter.)

McCullough: If you have State action and you enter into someone?s home, then the Constitution affords a heightened level of protection. But ?

Justice Scalia: Don?t dance around. Is it ? is it rendered an unreasonable search by the fact that I?m not a law enforcement officer at all?

McCullough: I don?t think the fact of ? no. The fact that ?

Justice Scalia: So any Federal employee can go crashing around conducting searches and seizures?

McCullough: So long ?

Justice Scalia: So long as he has probable cause?

McCullough: That?s correct.

Justice Scalia: That?s fantastic.
(Laughter.)

Justice Scalia: Do you really think that?

McCullough: I think if there is State action, it doesn?t matter that you?re wearing a badge or that you?ve gone through the police academy.

Justice Scalia: Or that you are an administrative law judge at the, you know, Bureau of Customs? It doesn?t matter?

McCullough: I think that?s right. That if you have ? if the State -

Justice Scalia: What about a janitor? You?re a janitor, a federally employed janitor.

McCullough: Your Honor ?

Justice Scalia: His neighbor is growing marijuana, and he?s just as offended as a Supreme Court Justice would be. Can he conduct a search?

McCullough: I think if he?s doing it on behalf of the State, the answer is yes.

Justice Scalia: Wow.

Full post as published by Southern District of Florida on January 15, 2008 (boomark / email).