Justice Ginsburg Lists Term’s Perplexing Oral Argument Questions

from the ABA Journal – Jul 26, 2011

By Debra Cassens Weiss

U.S. Supreme Court Justice Ruth Bader Ginsburg, in a speech (PDF) to the Otsego County Bar Association in Cooperstown, N.Y., listed some of the Court’s recent questions during oral arguments.  The Wall Street Journal’s Jess Bravin and How Appealing linked to the speech, and JoshBlackman.com has published the list online.  Notable questions on the list include:

• “What [did] James Madison th[ink] about video games?” (Justice Samuel A. Alito Jr. in Brown v. Entertainment Merchants Association, which struck down a California law barring the sale of violent video games to minors.)
• “What do you think about Satan?” (Justice Antonin Scalia in Matrixx Initiatives v. Siracusano, which allowed an investor lawsuit that claimed the makers of Zicam should have disclosed reports that the cold remedy caused a loss of smell, even though the reported incidents weren’t statistically significant.)
• “Where is the 9,000-foot cow?” (Justice Stephen G. Breyer in AT&T Mobility v. Concepcion, which held that the Federal Arbitration Act pre-empts a California common-law rule allowing some consumers to avoid class-action waivers.)

Said Ginsburg, “From the foregoing samples, you may better understand why the court does not plan to permit televising oral arguments any time soon.”