Lots of us (to my shame, me included) are having fun chuckling about a lawyer from Arkansas who got chewed up by the Justices in the half-inch beard case. See, e.g., Douglas Berman, Arkansas deputy AG cut to pieces while trying to defend prison beard-cutting policies, Sentencing Law and Policy (October 7, 2014) (In the body of the post, Doug mostly quotes the highly regarded Lyle Denniston).

If the silly little case was so easy, why did the Elite set it for argument? A per curiam reversal (think Ninth Circuit) would have worked just as well. However, that would not have allowed their Eminences the opportunity to display their preening wit.

I guess you gotta take your fun where you can find it.


16 responses

  1. This is the kind of incident Justice Thomas points to as exemplary of why he is silent in oral argument, maybe he has a point.

  2. Was this case accepted for review because of a circuit split? If so, what was the split – the length of the beard?

  3. Thanks for saying this. One of my partners argued before the Court a few years ago (it was the last thing he did before retiring: he gets to say that the final act of his legal career was telling Justice Scalia that he was wrong). For weeks, he did nothing but concentrate on preparing his argument. He went down to DC early and was grilled by a number of lawyers there. The case consumed him for a month or so. I’m sure the Arkansas deputy AG did the same. Most likely, this was the only time he’ll get to be before the high court. The least that the justices could have done would be to treat him as a professional and a colleague.

    And counsel for the petitioner was right that, even if this case seems easy, the justices (having accepted it) could use it to provide guidance for other prisoners’ rights matters.

    Not a shining moment in American legal history.

  4. I think there was good reason to set it for argument. Unlike in the recent per curiam reversal for example in Martinez v. Illinois, where the question was cut and dry, and the legal conclusion very direct, there are definitely some important unresolved issues here. And the panel opinion is brief and fails to address the standards by which RLUIPA applies except by a couple of conclusory sentences.

    Also, I believe the case was argued pro se below. While Mr. Holt/Muhammad does appear to be an unusually skilled pro se litigant, at least as judged by his cert petition, it would seem like the record below may not be fully sufficient to cover all possible legal bases the justices want to consider. And RLUIPA law is a bit of a mess, so they might genuinely want an opportunity to get as much information as possible before ruling. Setting it for argument invites amici to file briefs, and allows for more development of the arguments on both sides. If the Court is going to change how RLUIPA cases are handled, it seems like they should get as much input on the table as possible before they do so.

  5. Expect more conversions to Islam in prison.
    Also expect more shivs and SIMS hidden in beards.
    A sure thing.

  6. Jon,

    “The least that the justices could have done would be to treat him as a professional and a colleague.” That is the notion that I grew up with. I wonder why it has fallen out of favor?

    In my opinion, the smartest and most qualified judge in our nation’s history was Judge Richard Arnold of the Eighth Circuit and Arkansas. I had the pleasure of sitting with Richard on the Court of Appeals. His renown civility never once got in the way of asking probing but fair questions. It is a tragedy that Richard’s lymphoma precluded his appointment to the Supreme Court–his mere presence would have taught the rest of them some manners.

    Thanks for your engagement. All the best.


  7. Judge Kopf asks: “If the silly little case was so easy, why did the Elite set it for argument? A per curiam reversal (think Ninth Circuit) would have worked just as well. However, that would not have allowed their Eminences the opportunity to display their preening wit.”

    The answer is that “a summary reversal does not decide any new or unanswered question of law, but simply corrects a lower court’s demonstrably erroneous application of federal law.” Maryland v. Dyson, 527 U.S. 465 (1999). At the cert stage, there is little and sometimes no briefing of the merits. A reversal without merits briefing or argument on an unresolved question of law creates a significant risk of an error, even when, after briefing and argument, the Justices conclude that a case is easy. So, minimize the risk of an error at the Supreme Court that is hard to reverse, they avoid a summary reversal without merits briefing except when the case involves a clear misapplication of already-established law.


  8. Oh, and I should have been clearer on one thing. In the circuit courts, a reversal without argument is common for easy cases because the only difference is the absence of oral argument. After the circuit judges read the merits briefs, they can set the hard cases for argument and dispose of the easy cases on the papers. It’s different at the Supreme Court because a summary reversal is a reversal without merits briefing.

  9. Thanks for providing that information. I will review the material because I am interested in understanding the extent of the circuit split.

  10. In the circuit courts, there is also the practice of filing a motion for summary affirmance. In those cases, the ruling is typically based on the motion and response, with no full briefing.

  11. Orin,

    Thanks very much. Your experience with the Court is vastly superior to mine.

    My snide little post was probably over the top. That said, it really does appear that the Justices thought the case was terribly easy–the Chief said as much from the bench. That being the case, I would have preferred an oral argument that left the guy from Arkansas with his dignity in tact. As it is, the poor fellow is likely to live the rest of his life hearing the echoes of laughter while he remembers with painful embarrassment the one and only ocassion he had the privilege of appearing before the Justices. I understand that the Justices play for keeps, but perhaps there ought to be a “mercy rule.”

    All the best.


  12. Judge Kopf,

    I think the Justices can be at their harshest when they think the government is taking a really unreasonable position. They realize that the government has a ton of power to interpret the law outside court cases, and they get frustrated if it looks like the government is exercising that power unwisely. There’s a good deterrent argument for that harshness: If lawyers for the state know that they’ll get ripped if they take an unreasonable position before the Supreme Court, they’re less likely to take an unreasonable position before the Supreme Court — and maybe less likely to take an unreasonable position elsewhere. It’s not fun for the lawyer who has to argue that unreasonable position, but welcome to the NFL.

  13. Prof. Kerr,

    As you may or may not know, I am big on general deterrence. Thanks for the explanation.

    All the best.


  14. Professor Kerr – I appreciate your perspective. However, what if the government attorneys feel confident that they have a very reasonable position – even while preparing for oral argument? What do they then think after such a reception from the Court? I doubt that they went to the Supreme Court thinking that their position was unreasonable.

  15. Based on the briefing and the record below, I doubt they went to court thinking their position was very reasonable. And if they did, that position was worth disabusing.

    The Magistrate judge on the plaintiff’s initial pro se case found as a fact that it was implausible that contraband could be hidden in plaintiff’s beard. Justice Sotomayor actually questioned the government attorney on the Magistrate’s report for quite a while. (oral arg. transcript 35-38). Her questioning didn’t have the bite of Justice Alito’s though.

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