As the whole world now knows, the historic point in Monday morning’s argument in Boyer v. Louisiana was that Justice Thomas was recorded speaking at oral argument – and yet no one quite knows what he said, or whether he even intended to be heard.  He did not, however, ask a question, and his remark was only tangentially related to the merits.  As reported by observers in the courtroom (of which I was not one), in the middle of a discussion regarding whether one lawyer for Boyer was “competent” to try his capital case, Justice Thomas appeared to joke that being a Yale Law School graduate might or might not indicate competence.    Whether he intended his remark to be a recorded comment, or just a private aside, is unclear.  As is not atypical for the Roberts Court, so many Justices seem to have been simultaneously cross-talking — or perhaps the reporter was asked not to fully report? — that the transcript reports Justice Thomas’s remark only as “well – he did not – (Laughter).”   That limited version of what Justice Thomas said is surely inaccurate, and insufficient to produce “laughter.”  The entire dialogue is produced below.  But first, the merits.

As reported in my preview. Boyer petitioned on the narrow argument that when a delay in trial is caused by a lack of state funding for indigent counsel, that delay should be counted against the state.  The Louisiana appellate courts wrote that even if the majority of the delay (a total of seven years) in bringing Boyer to trial was caused by a “funding crisis,” that did not count against the state.  Somewhat surprisingly – but perhaps not unwisely — the state’s attorney, Assistant District Attorney Carla Sigler, began her argument by conceding the central point:  “I don’t believe that … we can credibly argue that funding is completely outside the role of the state.”  Instead, Sigler argued that even if “the rationale may be flawed … the result is not,” and she suggested that the Court nevertheless affirm the denial of Speedy Trial relief to Boyer because his own lawyer requested many continuances and because the failure to fund his counsel was at most negligent rather than “deliberate.”  But Justices Breyer and Sotomayor both suggested that, if the state got this factor in the Barker v. Wingo balancing analysis “wrong,” wouldn’t the right result be for the Court simply to say so and remand to “redo the Barker factors?”

There seemed to be a clear majority for this.  Justices Ginsburg and Kagan were clearly on Boyer’s side. Justice Kennedy similarly appeared to suggest that the Court stick to the narrow question presented.  And Justice Alito suggested a palatable middle ground.  After the bulk of the arguments was spent on fighting about other points in the record, Justice Alito noted that “this is an incredibly factually complicated case” and that “we don’t usually take cases that are so fact-bound.”  So he suggested “a rule we might adopt: If the failure to provide funding makes it impossible for some period of time for a case to be tried, then the delay is attributable to the State.  Would you agree with that?”

By that point, however, Sigler understood that she also had some Justices on her side.  From the start, Justice Scalia was unwilling to concede any constitutional speedy trial problem at all.  “Not so fast,” he seemed to say:  Boyer did in fact have one lawyer assigned to him at all times, and could have constitutionally gone to trial with that lawyer.  “Was[n’t] it within the control of your client?  …. he was faced with a choice.”  Even if Louisiana law required that Boyer have two appointed lawyers for his capital case, “you can either demand that right or you could demand your right to a speedy trial.”  Justice Scalia repeatedly asked why the record did not reflect inadequate attempts to claim the speedy trial right.

Thus, by the end of her argument, Sigler stuck to her guns for affirmance, suggesting that the Court draw the line at “deliberate” state delays, especially if a defendant does not “meaningfully” assert his right to speedy trial.  This is not a line supported by the Court’s precedents – both Barker and the Court’s subsequent decision in Vermont v. Brillon suggest that state “negligence” must count against the state, although perhaps not “heavily.”   Justices Kagan and Sotomayor also expressed frustration with saying that a state’s decision not to fund, when it has monies on hand, is not “deliberate.”

In the end, the arguments descended into complex “factbound” record debates, with some Justices expressing frustration about both parties’ factual claims.  The simpler path of reversing only on the question presented – delay due to funding failures does count against the state – and then remanding the case to the lower courts seemed to have the support of a majority.  The state’s lawyer made some wise decisions to concede where necessary but still deftly ask for affirmance, while Boyer’s lawyer (Richard Bourke of the Louisiana Capital Assistance Center) adroitly added enough factual complexity to the borders of his Speedy Trial claim to likely deter the Court from trying to resolve them.

But let’s get back to Justice Thomas’s remark, which I think ties in to an even more interesting exchange just a few pages later.  Suggesting that any one of Boyer’s lawyers would have been constitutionally sufficient to try his case, Justice Scalia asked “She was a graduate of Yale’s law school, wasn’t she?”  Here’s the rest of the exchange:

MS.SIGLER: She’s a very impressive attorney.

JUSTICE SCALIA: And another of his counsel, … he was a graduate of Harvard Law School, wasn’t he?

MS. SIGLER: Yes, Your Honor.

JUSTICE SCALIA [also a graduate of Harvard Law School]: Son of a gun.

JUSTICE THOMAS: Well – he did not –

(Laughter).

MS. SIGLER:  I would refute [dispute?] that, Justice Thomas.”

Some present in the courtroom thought they observed Justice Thomas pass a note to Justice Scalia (next to whom he now sits) right before Justice Scalia asked about the Yale Law School graduate.  And some report that Justice Thomas actually said something to the effect of “[being a graduate of Yale Law School (like Justice Thomas)] doesn’t mean you’re competent.”  That, surely, would generate laughter.

What Justice Thomas actually said may never be known with precision – and the conflict with observer reports versus the transcript pointedly reveals what frequent SCOTUS observers know: the transcripts come out so quickly that they often have errors in them.  It also seems possible and even likely – again, we may never know – that Justice Thomas did not intend to speak on the record at all, but rather was making a joking aside that was unintentionally picked up by the microphones.  (However, some observers say he actually leaned toward his microphone at the time.)

But it does sort of tie in with a subsequent, interesting-to-us-Court-wonks, exchange.  A few pages later Justice Breyer was pursuing a typically lengthy point with the state’s attorney, and began to say (after three pages of dialogue) “When you agreed with –”.  But then Justice Kagan – in almost a Chief Justice-like way – appeared to interrupt, saying “Ms. Sigler, could you go back to Justice Alito’s question?”  At which point Chief Justice Roberts did indeed referee by saying “Justice Alito has a question pending” (the “would you agree with that?” question recounted above).  This is a fascinating exchange between a Harvard Law School graduate/former Harvard professor (Justice Breyer) and the former Harvard Dean (Justice Kagan).  Justice Kagan seems to have no difficulty asserting herself on this Court.  And while the Harvard Justices (also encompassing the Chief Justice and Justices Scalia, Kennedy, and Ginsburg (via Columbia)) talked, the Yale Law School graduate (Justice Thomas) said no more.  Oh, Justices Alito and Sotomayor are also Yale grads.  Wait, that’s nine!  All from only two law schools!  I will leave it to other Court watchers to draw any further conclusions.

Louisiana has a subsidiary point – that even if Boyer’s murder conviction were dismissed, his ninety-nine-year sentence for armed robbery would remain.  Boyer, however, disputes that, and on rebuttal agreed with Justice Kagan that “it is well beyond the question presented.”  So watch for a relatively short unanimous opinion on the funding delay point, perhaps along the lines that Justice Alito suggested, and perhaps with a concurrence (or possibly dissent) by Justice Scalia expressing frustration with the entire speedy trial doctrine.  But I doubt Justice Thomas will say a further word.

Posted in Boyer v. Louisiana, Featured, Merits Cases

Recommended Citation: Rory Little, Argument recap: Justice Thomas jokes while hearing an “incredibly … fact-bound” Speedy Trial case, SCOTUSblog (Jan. 15, 2013, 11:26 AM), http://www.scotusblog.com/2013/01/argument-recap-justice-thomas-jokes-while-hearing-an-incredibly-fact-bound-speedy-trial-case/