Judging By This Post on SCOTUS Blog

…if I ever argue before the SCOTUS, I will try NOT to “surprise” or “confuse” the Justices and then “get their attention”, especially if I’m the gub’mint trying to do something really unpopular and, oh, kinda fascist.

…Apparently, however, Schiff had gotten the attention of the Justices on the issue of the double penalty, and that prompted Deputy Solicitor General Malcolm Stewart, as he began his response, to concede the possibility of double penalties. He said it had been put in the EPA brief “as an exercise of our duty of candor to the Court.” He said it was “theoretical,” not “practical.” When Justice Stephen G. Breyer noted that the compliance order issued to the Sacketts had mentioned only $37,500, not double that, Stewart said that was all that the order needed to say.

Soon, Chief Justice John G. Roberts, Jr., said he was confused, asking whether there were double penalties? Stewart said it was a legal possibility, but he knew of no case in which it had been done. The Justices, though, were now fully engaged on the double penalties, and other members of the Court pressed Stewart on it. Justice Alito, for example, got an admission from Stewart that the government had not adopted a policy to rule it out. “So,” said Alito, “‘it’s more than theoretical.” And when the government lawyer continued to say double fining had not been done, Justice Scalia remarked sarcastically,

“I’m not going to bet my house on that.”

One Response to “Judging By This Post on SCOTUS Blog”

1. mojo says:

   January 10, 2012 at 11:16 am

   Explaining why your client is perfectly justified in playing “hide the goalpost” with property “owners” cannot be comfortable.

   And that’s a good thing, because you are trying to justify the injustice.