Given this Court’s penchant for sarcastic comments and put-downs, it seemed only a matter of time before a case let them unleash their inner comedians. On Wednesday the Court heard oral arguments in a case that showcased their talents as stand-up comics, revealing a great deal about the attitudes of some of the justices.
In the words of Thomas Fisher, Solicitor General of Indiana, Indiana v. Ahmad Edwards revolved around whether:
The trial court was justified in requiring a higher level of competency for self-representation in order to prevent the trial of Ahmad Edwards from descending into a farce.
Who should be first on stage but none other than Justice Scalia, who fancies himself this Court’s most accomplished put-down artist. He asked:
But why is it necessary to have a special rule in order to prevent the trial from descending into a farce?
Read that sentence over again and then think about it. If you don’t see two interpretations because of the grammatical construction and a smile doesn’t cross your face and maybe even a chuckle escape when you get the second one, I would be surprised.
Scalia’s point was why not let a defendant make a fool of herself or himself and then decide if that warranted depriving them of their right to represent themselves.
Why didn’t you wait to see whether he’s going to be able to pull it off or not?
Indiana argued that it might be too late at that point because the defendant’s conduct might have tainted the jury.
The Chief Justice was not about to give Scalia all the good lines:
What would happen if you started out with pro se representation [an individual representing themselves] and then the trial turned into a farce?
But Scalia pushed back on stage:
I’m sure under the old rule, if I can recall it the old rule, where you have a single standard or both the right to be tried — the — the ability to be tried and the right to represent yourself, there must have been instances in which the person who was representing himself was unable to cope and the trial was — was turning into a farce.
You have to wonder who their writers were because that insertion of “if I can recall the old rule” is pure comic genius, a signal to those watching that this was not to be your usual oral argument, but rather an occasion for the justices to unleash their inner comedian.
Justice Scalia got his first response from the audience a few minutes later, as they began to realize what they were witnessing:
I sometimes — I sometimes think that the lawyers cannot communicate coherently.
“Laughter,” records the transcript.
Roberts began to catch on with a sentence that surely will bring quizzical smiles to law students who read it:
What if he — what if he wants to communicate not self-defense, but that, you know, Martians did it?
I defy anyone to cite another case that asks whether it is OK for the defendant to say Martians did it.
Roberts couldn’t let go of a good line:
I mean, there are people who believe in Martians, but above competence to stand trial, but also that would still be coherently communicated, but would show that it’s a ridiculous defense that’s not going to be effective in representing himself.
Justice Kennedy decided to join in:
A very rational highly competent person might want to make the trial a farce. Why should that case be any different than where the person does so because he’s incompetent?
Why indeed?
When the defense began its argument, Justice Scalia, who has always fancied himself as the best stand-up act in that white marble building, went back to the Martians again.
I mean this man is living in a fantasy world. He understands that he’s on trial, but his whole world 8 is just — he not only believes in Martians, he thinks we are all Martians, or something like that.
Scalia then unleashed another zinger :
Why pick on just the ability to communicate? It seems to me there are a lot of defects that can turn the trial into a farce.
The final attorney, Mark Stancil, was not quite as good at playing the straight man to the justices’ desire for one-liners, but Justice Kennedy doesn’t let that stop him:
It’s two ships passing in the night or in the case of some defendants about five ships passing in the night.
That one earned another “laughter” in the Court transcript. Not to be out done Scalia rated his second “laughter” remark in the transcript:
Are there any psychiatric studies that show how accurate psychiatric studies are?
There’s another one for the law students. Why you could even use it as a great opening line for a law review article.
At this point a comment from Justice Scalia reminded us that this case goes far beyond comedy and involves the Justices’ opinions on one of the most critical legal matters in a democratic system: how much right do you grant an individual to jeopardize their own case:
And I don’t know why the mere fact that his defense is incompetent or even is making no sense would justify — if that’s what he wants to do instead of pleading guilty, that’s, it seems to me, what the right of an individual consists of.
Think for a minute about the full implications of this argument. Someone can be making an utter–pardon the word–farce of their case–maybe even one that could involve the death penalty–and Justice Scalia is willing to let them do it.
This goes to the heart of the idea of the level playing field. A rich defendant can afford all the best legal counsel that money can buy, but a poor one–or one with delusions–must take their chances–and we all know what those are. As the old legal cliche puts it: someone who represents herself or himself in court has a fool for a lawyer. Indiana, on the other hand, was arguing that government could level the playing field by intervening to provide the defendant with competent counsel.
Of course, the issue is at what point does the government’s intervention become intrusive? Does an individual have a right to “make no sense” even if it might cost their life? Does government in the interest of providing the individual with the best defense possible have the right to require they have an attorney other than themselves?
A relatively unheralded case highlighted one of the most fundamental tensions in our democracy and how the justices’ view it. Scalia and the three justices who usually vote with him lean towards keeping the government out of our lives, even if it is our lives that might be at stake.
Justice Souter cut to what was at stake with his usual astuteness:
Somebody who is totally polite to the Court, who does not scream and yell, who talks only when he is allowed to talk, but talks total and complete nonsense, can never be replaced, in your view, by a standby counsel in the middle of the trial after this has been shown to be the way he’s acting; isn’t that correct?
MR. STANCIL: I believe we’re dealing with — two responses.
JUSTICE SOUTER: How about “yes” or “no”?
(Laughter.)
Justice Kennedy must have had the next one-liner in his back pocket just waiting to deliver it.
JUSTICE KENNEDY: There are all kinds of nuts who could get 90 percent on the bar exam.
(Laughter.)
And so ends what must have been an oral argument that set a record for the number of times “laughter” is recorded in the transcript. But you have to ask, “At whose expense was the laughter?”
In this case it is defendants who may have a mental illness but still want to represent themselves in Court. There is more going on here than a clash over a basic civil right. This is the august justices of the United States Supreme Court making jokes at the expense of the disabled and mentally ill. Change the cracks about “Martians,” “nuts,” and “ships passing in the night” to negative stereotypes about women or people of color and you will see what I mean.
The cracks are unfortunate because according to one study, people with mental illness are more likely to be crime victims, landing them in court. In “Criminal Victimization of Persons with Severe Mental Illness,” the authors report:
Twenty-seven patients (8.2 percent) were victims of a violent crime in the previous four months, a rate of violent victimization well above the 3.1 percent annual rate of violent criminal victimization in the U.S. general population (42,43). On the other hand, the rate was comparable to the 8 percent annual rate found a decade earlier among mentally ill patients who lived in board-and-care homes in Los Angeles.
The study also uncovered a fascinating correlation:
Those [people with a mental illness] who were picked up or arrested for any offense were one-third more likely to have been a victim of a nonviolent crime and three times more likely to have been a victim of a violent crime.
Most of the literature on verbal abuse pertains to verbal abuse of women in destructive relationships. Several researchers have linked this type of verbal abuse with control: verbally abusing a woman is an attempt to assert dominance. This link between verbal abuse and domination has led some to speculate that is why verbal abuse can lead to physical abuse.
The justices’ remarks suggest little empathy, even compassion, for those for whom their day in court is no joke, even if the Chief Justice wants to make cracks about Martians. There also is a less-then-hidden contempt for psychological studies that surfaces in Scalia’s comment about psychological tests and this one:
What I object to in the proposal is making these judgments ex ante on the basis of — I don’t know — psychological testing or past behavior or anything else.
What fascinates me is that this relatively obscure case revealed a great deal about the attitudes and motivations of justices I have nicknamed the Four Horsemen (remember you heard that nickname here first). Scalia’s one-liners, in particular, do seem to be the mark of someone for whom the put-down, the cutting remark is an indication of his barely-masked belief in his own intellectual brilliance and the incompetency of the rest of us. The Four seemed to especially relish a chance to put down lawyers in general.
But in this case the humor went beyond Scalia’s usual put-downs. Maybe the justices remarks inspired no public outcry because verbal abuse of the mentally ill has yet to become as disdained as verbal abuse of people of color or women. Here the link between verbal abuse and dominance theorized by some researchers is especially fascinating. Do Scalia’s frequent one-line put-downs betray a need for dominance? Legal scholars out there looking for a research project might want to take a look at that question.
Even more troubling is whether the put-downs at the expense of the mentally ill mask a larger disdain for others who are less fortunate? The Four Horsemen have a disturbing record when it comes to cases of discrimination. These are the justices who are threatening to emasculate one of the most revered Supreme Court decisions: Brown v. Board.
One imagines one of those Star Trek scripts in which the crew of the Enterprise stumble across the records of a now defunct civilization, among them this case. Mr. Spock with his unassailable commitment to logic, might see this case which received little public attention as a prime exhibit in understanding why that civilization failed.
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