Writing a book about the Supreme Court with a non-lawyer editor has been a fascinating process. At one point, I included a lengthy question from Justice Kennedy during oral arguments, where he expressed some concerns about striking down the ACA. My editor wrote a big comment– “Where’s the question???”
I chuckled. He’s right. There was no question. It was something of a soliloquy or monologue perhaps?
Frequently, Justice Kennedy, and others Justices, are making statements, disguised as questions. Similarly, students do this all the time in class. As do professors at workshops. This must be a lawyerly thing to pretend to ask a question.
Anyway, here is such a “question” from Justice Kennedy during arguments today in Arizona v. Inter Tribal Council of Ariz. Inc.:
JUSTICE KENNEDY: The Court of Appeals said that there’s a different preemption test under — for this law under this Constitutional provision than there is under the Supremacy Clause. It seems to me that that ignores the proposition that the State has a very strong and vital interest in the integrity of its elections, even when those, and perhaps especially when those are elections of Federal officials. And it seems to me the Ninth Circuit’s new test did not give sufficient weight to that interest.
I’ll assume there was an upward inflection on his voice at the end, because there is not even a pretense of a question being asked.