On Monday it seems that Justice Sotomayor talked right to the red light, necessitating that Chief Justice Roberts gave Ed Kneedler a chance to respond. It seems the same happened in Kansas v. Cheever.
JUSTICE SOTOMAYOR: I’m not quite sure I understand why we shouldn’t follow the Simmons analogy because, as I understand it, we haven’t ruled on the last question of whether you can use the compelled statements as impeachment. But if we assume that to be the case, most circuits who have addressed the issue, and I think it may be all of them, have said you can because there’s a waiver of your Fourth Amendment right when you take the stand to impeachment. Why couldn’t we follow a similar reasoning here, which is, you’re compelled to — I’m sorry. Forget it. I can answer my own question.
(I’m guessing at this point the red light went off).
CHIEF JUSTICE ROBERTS: Don’t forget it. Why don’t you try a quick response. (Laughter.)
MR. SCHMIDT: Thank you, Mr. Chief Justice. Justice Sotomayor, I think the — the key difference in Simmons and the reason its reasoning shouldn’t be applied here is that the distinction we’ve been drawing from the start of this case is that what we want is a rule of parity. We want to be able to rebut what the defendant himself put in issue in front of thejury. And that’s not Simmons. CHIEF JUSTICE ROBERTS: Thank you, counsel. The case is submitted. (Whereupon, at 11:03 a.m., the case in the above-entitled matter was submitted.)