NPR's Legal Affairs Correspondent Nina Totenberg sends us some odds and ends from a very momentous week in the Supreme Court.
Hear all that sneezing, wheezing, coughing, and nose blowing during this week's same-sex oral arguments at the U.S. Supreme Court?
That was Justice Antonin Scalia, apparently sick as a dog but reporting for duty nonetheless. Last week it was Justice Sonia Sotomayor who looked like hell and was sniffling her way through oral arguments. She apparently gave the bug to Scalia.
Who do you suppose is next? Chief Justice John Roberts sits on one side of Scalia, and Justice Clarence Thomas on the other.
Personally, I kept wondering whether those germs could make their way down to the press section.
The case of the chief justice's compromised credit card: No, its not a Perry Mason story. It is ripped from the headlines, sort of. The court's press office confirms a story first reported by The Washington Post's Al Kamen. On the opening day of the same-sex arguments, the chief bought his usual Starbucks using cash instead of a credit card, explaining to the barista that he had to cancel his credit card because someone got hold of its numbers.
Lawyer Roberta Kaplan, representing DOMA plaintiff Edith Windsor, wore conservative Ferragamo pumps for her argument, deciding against the jazzier Guccis, with a bigger brass buckle. Neither is what I would call racy. Of course, the justices can't see counsel's feet anyway. She could have worn red shoes, and they wouldn't have known.
At the arguments, Justice Elena Kagan drew laughs from one hypothetical, but the crowd didn't get Scalia's rejoinder.
If procreation is the purpose for civil marriage, she asked Proposition 8 lawyer Charles Cooper, could a state bar marriage licenses for couples over 55?
When Cooper replied that one partner would likely remain fertile, Kagan opined sarcastically, "I can just assure you if both the woman and the man are over the age of 55, there are not a lot of children coming out of that marriage." The assembled crowd in the courtroom guffawed.
That prompted Justice Scalia to observe that "Strom Thurmond was not chairman of the Judiciary Committee when Justice Kagan was confirmed" — a reference to the fact that Thurmond had his first child when he was 68, and had three more kids thereafter.
Few seemed to get the joke. Most were probably too young to remember. Thurmond died in 2003 at the age of 100. After his death, it was revealed that he fathered a mixed-race daughter out of wedlock when he was 22.