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Thanks to a super-handy foldable bluetooth keyboard, I was able to live-tweet Justice Alito’s address before the Federalist Society Gala. Justice Alito was interviewed by his former law clerk, Adam G. Ciongoli. The discussion ranged from the FirSst Amendment, to the Fourth Amendment, to how Justice Alito works with his clerks. It was very enjoyable. Here are some of the highlights I tweeted.

They opened with some insights into Justice Alito’s career, time in New Jersey as a US Attorney, and as a 3d Circuit Judge.

#fedsoc2014 Ive always wantd to taste Fiji water. Usually at hotels it is $15

— Josh Blackman (@JoshMBlackman) November 14, 2014

#FedSoc2014 Q: What have you been doing to not get fired? Alito: After 3 yrs on 3rd Cir I thought, what next?

— Josh Blackman (@JoshMBlackman) November 14, 2014

#FedSoc2014 It first occurred to me that I wanted to become a judge when I was clerking for Judge Garth. No possibility I could be elected

— Josh Blackman (@JoshMBlackman) November 14, 2014

#fedsoc2014 Martha Ann wasnt happy about sequnce. She wanted a job where I earn some money. #lol

— Josh Blackman (@JoshMBlackman) November 14, 2014

#fedsoc2014 We have a cartoon on my dresser. Car at fork in road. One says this way to never never land, never say never land, and Newark

— Josh Blackman (@JoshMBlackman) November 14, 2014

#FedSoc2014 Had I never gone to Newark I would have never met my wife. #itsajerseything

— Josh Blackman (@JoshMBlackman) November 14, 2014

#fedsoc2014 What an all star cast at OLC. Chuck Cooper head of office. Line attnys McGinnis Lund Paulsen

— Josh Blackman (@JoshMBlackman) November 14, 2014

And, to answer a question others have raised, Justice Alito did try one case in district court–it was the murder of an FBI agent.

#FedSoc2014 As US Attorney I did try 1 case. I read indictments before I signed them. If youre going to try big case weeks of prep

— Josh Blackman (@JoshMBlackman) November 14, 2014

We also learned that Justice Alito does not like an unnamed female Court Artist, who draws him, and Justice Kagan “horrible.”

#FedSoc2014 Theres an artist who draws pics of Court. She sits on right and she makes both Elena Kagan and me look horrible @Courtartist

— Josh Blackman (@JoshMBlackman) November 14, 2014

Justice Alito also thought about taunting Justice Kagan and Ginsburg by spitting in his spitoon.

#FedSoc2014 Biggest change when I got to #scotus was formality. We still have spitoons by the bench.

— Josh Blackman (@JoshMBlackman) November 14, 2014

#FedSoc2014 Ive been tempted to bring chew to see how Kagan and Ginsburg react. I dont know etiquette spit to right or left

— Josh Blackman (@JoshMBlackman) November 14, 2014

Justice Alito also opined that initially, his plan for oral arguments was to only interrupt at the end of paragraphs. That didn’t work. Then he tried at the end of sentence. That didn’t work. So now he is content to be rude.

#FedSoc2014 My strategy was to ask questions at end of paragraph, then sentence. Now you have to be rude and barge in to get words in

— Josh Blackman (@JoshMBlackman) November 14, 2014

For those who want to argue, they should string a single sentence that lasts 30 minutes. Recently Seth Waxman was chastised by Justice Scalia for not pausing for a breath between sentences.

#FedSoc2014 Best way to answer qs is to string a single sentence that lasts 30 mins. Advocates today are much better than in 80s

— Josh Blackman (@JoshMBlackman) November 14, 2014

THe next set of questions focused on the role of the law clerk.

#FedSoc2014 Role of law clerk varies from judge to judge. Most judges use them approp. Essence of judging remains w judge

— Josh Blackman (@JoshMBlackman) November 14, 2014

#FedSoc2014 Some judges delegate decisions to law clerks. Danger of having smart law clerks. Some Justices in past did this. None today

— Josh Blackman (@JoshMBlackman) November 14, 2014

I’m looking at you Justices Marshall and Blackmun. Alito has no interest of going back to cert pool.

#FedSoc2014 Im glad I dropped out of the cert pool. I dont plan on going back

— Josh Blackman (@JoshMBlackman) November 14, 2014

Then, Alito was asked about legal education.

#fedsoc2014 some things that could be improved. Some features of legal education that stress things different than what clerks asked to do

— Josh Blackman (@JoshMBlackman) November 14, 2014

#FedSoc2014 Law Profs inculcate students with idea that law is a lot more indeterminate than it is. I dont take clerks right out of law schl

— Josh Blackman (@JoshMBlackman) November 14, 2014

#FedSoc2014 Law students are taught that judges decide based on what they had for bfast

— Josh Blackman (@JoshMBlackman) November 14, 2014

#FedSoc2014 Most cases in courts of appeals would come out same way regardless of panel.

— Josh Blackman (@JoshMBlackman) November 14, 2014

#FedSoc2014 When I was clerking on court of appeals there was usually a clear answer

— Josh Blackman (@JoshMBlackman) November 14, 2014

Next, the questions turned to the First Amendment, with a focus on his dissents in Snyder v. Phelps, Stevens, and Alvarez:

#FedSoc2014 I have concerns what future holds for First amendment freedoms.

— Josh Blackman (@JoshMBlackman) November 14, 2014

#FedSoc2014 Q about lone dissent in Snyder and Stevens and campaign finance. Useful to think about providing protection for freedom of spech

— Josh Blackman (@JoshMBlackman) November 14, 2014

#FedSoc2014 Freedom of speech essential for our form of gov. At core of protection. Special protection of speech furthers sarch for truth

— Josh Blackman (@JoshMBlackman) November 14, 2014

#FedSoc2014 I dont beleive that truth always wins out in marketplace of ideas. But freedom of speech necessary to work towards that goal

— Josh Blackman (@JoshMBlackman) November 14, 2014

We were treated to this description of crush films.

#FedSoc2014 In Crush video caseVideos where woman wiht high heel shoes stomps small animal to death, like kitten or hampster

— Josh Blackman (@JoshMBlackman) November 14, 2014

#FedSoc2014 In Snyder and Alvarez, speech caused great harm and had absolutely no value. Approp to impose some restrictions. Far from core

— Josh Blackman (@JoshMBlackman) November 14, 2014

#FedSoc2014 Stolen Valor case significant. Held First am protects statement that is false. Value of speech-made person feel good.

— Josh Blackman (@JoshMBlackman) November 14, 2014

#FedSoc2014 Q: Where do you see first am in 5 yrs? I wish Iknew. I think it will be up to what is done by a lot of people in gov, judic, leg

— Josh Blackman (@JoshMBlackman) November 14, 2014

Alito next explained that he does not view our society evolving in the right direction with respect to the protection of free speech, relating to the “Evolving Standards” in 8th Amendment jurisprudence:

#FedSoc2014 Malifulous phrase in our case law: evolving standards of decency. Expreses philosophy of history that society matures

— Josh Blackman (@JoshMBlackman) November 14, 2014

#FedSoc2014 I wish I could believe that society was improving. Societies decline. Idont think we will provide more protection for freedom

— Josh Blackman (@JoshMBlackman) November 14, 2014

Next, the questions turned to the 4th Amendment. Alito’s general position was that Legislatures, and not Courts should be in the business of deciding what practices are reasonable, or not, though at bottom courts interpret the 4th Amendment:

#FedSoc2014 Did exp as US attny inform view of 4th am? All Justices have experience in diferent areas. I spent a lot of carer with crim work

— Josh Blackman (@JoshMBlackman) November 14, 2014

#FedSoc2014 I never did any patent work before. I had to learn it on the fly

— Josh Blackman (@JoshMBlackman) November 14, 2014

#FedSoc2014 Q about Riley. The Court in end decides what 4th am means. Cant defer that decision

— Josh Blackman (@JoshMBlackman) November 14, 2014

#FedSoc2014 Very helpful for legislatures to take a first look at issues of tech and 4th am

— Josh Blackman (@JoshMBlackman) November 14, 2014

Then, in what seemed like a sleight to Justice Scalia’s opinion in Jones, he critiques the property view of 4th Amendment law (Nino was sitting in the front row):

#FedSoc2014 4th am built on prop law established by legislatures. That worked well till electronic age. Became diff to apply prop based rls

— Josh Blackman (@JoshMBlackman) November 14, 2014

#FedSoc2014 Court developed reasonable expectation of privacy standard. There is a lot of circularity there.

— Josh Blackman (@JoshMBlackman) November 14, 2014

Ultimately, it should be Congress who defines the contours of privacy for technology.

#FedSoc2014 Congress intervene when Court held 4th applies to wiretapping. Detailed statutory scheme works well

— Josh Blackman (@JoshMBlackman) November 14, 2014

#FedSoc2014 Federal judges generally not in forefront of having good feel for new forms of technology. Legislators should express views ppl

— Josh Blackman (@JoshMBlackman) November 14, 2014

#FedSoc2014 I dont think it is optimal solution for judges to determine what is reasonable

— Josh Blackman (@JoshMBlackman) November 14, 2014

For the last question, Ciongoli noted that after Alito was appointed to the Court, the Philadelphia Phillies won the division several times, and the World Series. Can he help the Sixers?

#FedSoc2014 Can you help the Sixers? I only do baseball

— Josh Blackman (@JoshMBlackman) November 14, 2014

Also, special shout-outs to the Supreme Court press corps who was in the back of the room on a dais (elevating the freedom of the press!).

#fedsoc2014 Press in the house @NinaTotenberg @scotusreporter @DavidGSavage @imillhiser @jostonjustice @Arianedevogue @JessBravin

— Josh Blackman (@JoshMBlackman) November 14, 2014

And my bluetooth keyboard.

#FedSoc2014 fast tweets courtesy of bluetooth keyboard pic.twitter.com/QbdbRpiVCm

— Josh Blackman (@JoshMBlackman) November 14, 2014

Today, the Supreme Court denied a stay of a 9th Circuit decision invalidating an amendment to the Arizona Constitution. Justice Thomas, joined by Justice Scalia, issued a statement with respect to the denial of the stay. While he agreed granting a stay was not appropriate here, he weighed in on the Court’s erratic denial of stays from opinions that invalidated state constitutional provisions:

We have recognized a strong presumption in favor of granting writs of certiorari to review decisions of lower courts holding federal statutes unconstitutional. See United States v. Bajakajian, 524 U. S. 321, 327 (1998); United States v. Gainey, 380 U. S. 63, 65 (1965). States deserve no less consideration. See Janklow v. Planned Parenthood, Sioux Falls Clinic, 517 U.S. 1174, 1177 (1996) (SCALIA, J., dissenting from denial of certiorari) (“This decision is questionable enough that we should, since the invalidation of state law is at issue, accord review”). Indeed, we often review decisions striking down state laws, even in the absence of a disagreement among lower courts. See, e.g., Hollingsworth v. Perry, 570 U. S. ___ (2013); Cook v. Gralike, 531 U. S. 510 (2001); Saenz v. Roe, 526 U. S. 489 (1999); Renne v. Geary, 501 U. S. 312 (1991); Massachusetts v. Oakes, 491 U. S. 576 (1989). But for reasons that escape me, we have not done so with any consistency, especially in recent months. See, e.g., Herbert v. Kitchen, ante, p. ___; Smith v. Bishop, ante, p. ___; Rainey v. Bostic, ante, p. ___; Walker v. Wolf, ante, p. ___; see also Otter v. Latta, ante, p. ___ (denying a stay); Par- nell v. Hamby, ante, p. ___ (same). At the very least, we owe the people of Arizona the respect of our review before we let stand a decision facially invalidating a state consti- tutional amendment.

Of course, the Court has yet to act on a petition for a writ of certiorari in this matter, and I hope my prediction about whether that petition will be granted proves wrong. Our recent practice, however, gives me little reason to be optimistic.

The Times reports that Mitch McConnell will bring to the floor a bill that would ban abortions after 20 weeks.

One thing that will prove popular among the base is a commitment by Senator Mitch McConnell, the presumptive new majority leader, to bring up a bill that would ban abortions after 20 weeks of pregnancy, which he is expected to do next year.

That bill has a 0% chance of passing, but let’s assume a Republican President in 2016 signs it into law. Would this bill be constitutional? Let’s put aside the Due Process angle, and focus on the Commerce Clause and Section V of the 14th Amendment.

You may recall that in Gonzales v. Carhart, Justice Thomas concurred separately with Justice Scalia to note that the Partial-Birth Abortion ban may have been susceptible to a commerce clause challenge, but because the parties did not raise it, the issue was waived. Presumably, the Justices would have invalidated the bill on those grounds.

Would the challengers make an argument that such a law exceeds Congress’s powers under the Commerce Clause or Section V of the 14th Amendment? On the one hand, I suppose they would want to make any argument possible in order to invalidate the law. On the other hand, it would be very tough for groups like the ACLU or Planned Parenthood to line up behind an argument that places a significant limitation on federal power, over something as commerce-y as health care. Don’t forget the ACLU favorably cited Jacobson v. Massachusetts in their Obamacare brief. Priorities.

Imagine a 5-Justice bloc that would invalidate the law on commerce clause grounds, and another 5-Justice bloc that invalidates it on due process grounds, with AMK in the middle. That’s about right.

In Yates v. United States–the fish case–Justice Scalia hooked the Solicitor General into a series of questions about prosecutorial discretion. In particular, he suggested that if the government would not exercise (what Scalia views) as prosecutorial discretion, then the Justices, through some sort of rule of lenity, would make the impact of the statute less severe.

But Justice Scalia framed the issue in a very odd manner–in the first person.

MR. MARTINEZ: Your Honor, the ­­ my understanding of the U.S. Attorney’s Manual is that the general guidance that’s given is that the prosecutor should charge ­­ once the decision is made to bring a criminal prosecution, the prosecutor should charge the ­­ the offense that’s the most severe under the law.  That’s not a hard and fast rule, but that’s kind of the default principle. In this case that was Section 1519.

JUSTICE SCALIA: Well, if that’s going to be  the Justice Department’s position, then we’re going to  have to be much more careful about how extensive statutes are. I mean, if you’re saying we’re always  going to prosecute the most severe, I’m going to be very careful about how severe I make statutes.

Scalia recently noted in a concurral in Whitman v. United States that it is the Court that construes criminal statutes, not the prosecutor.

A court owes no deference to the prosecution’s interpre- tation of a criminal law. Criminal statutes “are for the courts, not for the Government, to construe.” Abramski v. United States, 573 U. S. ___, ___ (2014) (slip op., at 21).

I–not the Court–will be careful about how I–not the court–make the statute less severe. What an strange way of phrasing the rule of lenity. After the Solicitor General intervened, Scalia repeated that formulation:

MR. MARTINEZ: Your Honor, that’s —

JUSTICE SCALIA: Or ­­ or how much coverage I give to severe statutes.

So not only will Scalia (“I) make the statute less severe, he will decrease the “coverage” (presumably what it covers, excluding fish).

Scalia discusses more about the rule of lenity in his concurral in Whitman v. United States:

The Government’s theory that was accepted here would, in addition, upend ordinary principles of interpretation. The rule of lenity requires interpreters to resolve ambi- guity in criminal laws in favor of defendants. Deferring to the prosecuting branch’s expansive views of these statutes “would turn [their] normal construction . . . upside-down, replacing the doctrine of lenity with a doctrine of severity.” Crandon v. United States, 494 U.S. 152, 178 (1990) (SCALIA, J., concurring in judgment).

The best that one can say for the Government’s position is that in Babbitt v. Sweet Home Chapter, Communities for Great Ore., 515 U. S. 687 (1995), we deferred, with scarcely any explanation, to an agency’s interpretation of a law that carried criminal penalties. We brushed the rule of lenity aside in a footnote, stating that “[w]e have never suggested that the rule of lenity should provide the stand- ard for reviewing facial challenges to administrative regu- lations.” Id., at 704, n. 18. That statement contradicts the many cases before and since holding that, if a law has both criminal and civil applications, the rule of lenity governs its interpretation in both settings. See, e.g., Leocal v. Ashcroft, 543 U. S. 1, 11–12, n. 8 (2004); United States v. Thompson/Center Arms Co., 504 U. S. 505, 518, n. 10 (1992) (plurality opinion); id., at 519 (SCALIA, J., concur- ring in judgment). The footnote in Babbitt added that the regulation at issue was clear enough to fulfill the rule of lenity’s purpose of providing “fair warning” to would-be violators. 515 U. S., at 704, n. 18. But that is not the only function performed by the rule of lenity; equally im- portant, it vindicates the principle that only the legislature may define crimes and fix punishments. Congress cannot, through ambiguity, effectively leave that function to the courts—much less to the administrative bureaucracy. See United States v. Wiltberger, 5 Wheat. 76, 95 (1820). Bab- bitt’s drive-by ruling, in short, deserves little weight.

During oral arguments in Yates v. United States, Justice Breyer referred to the case of Kolender v. Lawson, which he noted was written by Justice Ginsburg. That is not correct. It was actually an opinion by Justice O’Connor, authored in 1983, a decade before RBG joined the Court.

JUSTICE BREYER: ­­ would be that the void for vagueness, if you look at Skilling, has two branches. From Kolender v. Lawson ­­ Justice Ginsburg wrote it ­­ a penal statute defining the criminal offense, one, with sufficient definiteness that ordinary people can understand. That’s what Justice Scalia has just talked about. You can understand what is prohibited.