When I asked Justice Scalia in an interview last year about his combative style during oral arguments, he defended himself by making comparisons with other justices. “I don’t think it’s true that I am the most talkative,” he said, adding that such distinction would go to Justice Breyer, who asks long hypothetical questions. Then Scalia became more animated and said, “You ever hear Ruth excoriate somebody who is arguing a … case? She can be really tough.”
I was reminded of that assessment this week as Justice Ginsburg forcefully questioned lawyers at the lectern and would not let up on a line of attack in several cases. She was, as usual, deep into the nooks and crannies of the disputes. At one point during arguments over a City of Chicago test for firefighters that hurt African American applicants, she told Deputy U.S. Solicitor General Neal Katyal, siding with challengers to the city, “I think you had a footnote in your reply brief that said if your position prevails here …” A few minutes later, when city lawyer Benna Ruth Solomon took the lectern, Ginsburg asked seven questions in a row, probing flaws in the city’s case.
The next day, Justice Ginsburg challenged Georgetown University law professor David Cole as he defended the Humanitarian Law Project’s desire to support nonviolent activities of the Kurdistan Workers’ Party. The PKK, as it is called, is a militant separatist group in Turkey that the U.S. Secretary of State has designated a “foreign terrorist organization.”
“There are a lot of groups on the (foreign terrorist organization) list,” Ginsburg noted. “I think the Al-Qaeda was one instance that was mentioned and, at least according to the briefs, you conceded that if you wanted to do just what you describe with respect to the Kurdish group or the Tamil group, the (U.S. government’s) ban (on any support of the organization) would be permissible.”
Cole responded, “We didn’t actually concede that, your honor.” Cole then tried to explain the difference between humanitarian support for Al-Qaeda or the Taliban, as opposed to the PKK. Before he could clarify, other justices raised questions.
Then Cole, seeing the white light at the lectern and knowing he had less than five minutes left, said to Chief Justice Roberts, “If I could reserve the rest of my time” for rebuttal.
But Ginsburg wasn’t going to let him sit down just yet: “Do you want to give an answer to the Taliban and the Al-Qaeda?”
“Oh, I’m sorry. I’m sorry, Justice Ginsburg,” Cole said. “The answer would be we are in a military conflict with the Al-Qaeda and the Taliban. … Therefore treason law might be applicable. … Number two, it is not clear that Al-Qaeda engages in any lawful activities … .”
When Solicitor General Elena Kagan stepped up to defend the disputed prohibition on not only financial support but training and advice to designated organizations, Ginsburg poked holes in her claim that the government was not targeting speech.
“How about what’s involved here?” Ginsburg asked. “I think they (Humanitarian Law Project members) said that they want to train them (the Kurds) how to … pursue their goals in a lawful, rather than a terrorist, way. And that is speech. It is not conduct. They want to engage in advocacy of peaceful means … .”
When other justices joined the fray with hypothetical questions about assistance for arguably lawful activities, including (as Justice Sotomayor suggested) teaching the harmonica, Scalia scoffed and asked Kagan:
“Why do these hypotheticals make any difference? Clearly the broad scope of this statute is constitutional, and whatever aspects of speech it may run afoul of are minimal. That being the case, of what relevance are these hypotheticals? It’s a lot of fun and it’s very interesting, but we can deal with all of that when the situations arise, can’t we?”
Kagan responded, “I do think that the answer to that is ‘yes,’ Justice Scalia.”
But then Ginsburg interjected, reminding her old friend Scalia that not all justices were as supportive of the government’s position: “The answer on the other side is, all we want to do is speak about lawful activity.”
When I once asked Ginsburg about Scalia, she said, “I love him. But sometimes I’d like to strangle him.”