Scalia and Sotomayor on Counting to Five

January 22nd, 2015

During oral arguments in Williams-Yulee v. Florida Bar, the attorney for the respondent favorably cited Buckley, McConnell, and Citizens United.

This did not sit well with Justice Sotomayor, who reminded the lawyer that those cases had dissents!

JUSTICE SOTOMAYOR: I ­­ I ­­ be careful with that line because there’s a number of Justices on the Court that dissented from that ­­


JUSTICE SOTOMAYOR: — and Citizens United has brought that into question.

MR. RICHARD: I ­­ — I —  ­­

JUSTICE SOTOMAYOR: So assuming that’s not the argument, what’s the better response?

In the past, Justice Sotomayor has explained that when she is in dissent she “think[s] the majority [was] wrong.” Sotomayor also sparred with Alito over the value of stare decisis in Alleyne.

Justice Scalia shot back, and reminded the lawyer (and Sotomayor) that five votes a majority makes:

JUSTICE SCALIA: Well, you only need five votes, and there were five votes there.


The lawyer perhaps didn’t quite get Scalia’s comment, because he said he was trying to get Scalia’s vote “as well.”

JUSTICE SCALIA: Don’t be too intimidated.

MR. RICHARD: I’m getting to try to get your vote as well, Justice Scalia. I haven’t reached that point yet. But ­­ and I understand it’s a high mountain to climb, but ­­ but the point here that I’m trying to make is that this is an extremely minimal imposition of the candidate’s freedom of expression, if there’s any imposition at all.

I’m not a fan of lawyers mentioning that they are trying to get a specific Justice’s vote. I realize sometimes Justice will bait them–“tell me counselor, how I can rule in your favor”–but these kinds of gratuitous comments, and reference to a  “high mountain to climb” seem gauche.