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.


iPhone irony

The Washington Post is carrying two stores of interest to iPhone users. All the federal judges in Nebraska are provided with iPhones (4s) for work and, in my case, play. The first story recounts that the FBI Director went wacko about the new Apple operating system (iOS 8.0 plus subsequent iterations) because it is encrypted in such a way that law enforcement officers can’t easily get into Apple products. The second Washington Post article recounts that if you downloaded iOS 8.0 or 8.1 to your new iPhone 6 or iPhone 6 Plus the phone no longer works as a phone–it becomes a really expensive reminder that Steve Jobs is dead.* We judges have been told not to download the new operating system until our IT people give the OK.

Do any of you see the same amusing irony that I see? Delicioso.**


*Apparently, iOS 8.2 issued a day or so ago fixes these problems. See here.

**If you find references to oral sex disconcerting, do not look up this word in the Urban Dictionary. Substitute “schadenfreude” instead–Germans are far more repressed. Trust me, I know.



Federal district judges frequently get no respect at the Supreme Court.  Or at least that was true prior to the arrival of Justice Sotomayor who served for many years as a federal district judge before her elevation to the Supreme Court.

With great pleasure, I read the oral argument transcript in Sekhar v. United States, 12-357, where the distinguished advocate Paul Clement gets smacked around for being a smart ass when referring to a federal district judge who sat by designation on the Second Circuit.  I enjoyed the refined ass whipping Clement received as well as his fawning response.  Perhaps you will too.

MR. CLEMENT:  Well, a couple of things, Justice Sotomayor.  I went back to the Tropiano case, because it is sort of the pro genitor of this whole line of Second Circuit cases, and I noticed two things.

One, I noticed it was written by a district [judge] sitting by designation.  So, I mean, I – I don’t mean anything by that other than this is not Marbury.

Second, I would say that the second thing I noticed is that the debt –

JUSTICE SOTOMAYOR:  Oh, I think when I sat as a district court judge, I would have been insulted by that.

MR. CLEMENT:  Well, it’s not – it’s a good thing you’re no longer sitting in that capacity, Your Honor –

JUSTICE SOTOMAYOR:  Okay.  It’s really –

MR. CLEMENT:  — because I – I certainly mean you no offense.  You could write Marbury here.

Arguments Transcript, Supreme Court of the United States, 2012 Term Cases, #12-357, Sekhar v. United States, argued April 23, 2013, p. 60-61.

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