My favorite moment of oral arguments (so far) is this line from Justice Sotomayor:
JUSTICE SOTOMAYOR: Assumes the lack of competency of the government, which I don’t . . .
Of course she doesn’t.
But what Scalia does to her next–breaking in and answering on behalf of the respondent–is brutal:
JUSTICE SCALIA: Mr. Long, I don’t think you are going to come up with any, but I think your response is you could say that about any jurisdictional rule. If it’s not jurisdictional, what’s going to happen is you are going to have an intelligent federal court deciding whether you are going to make an exception. And there will be no parade of horribles because all federal courts are intelligent.
So it seems to me it’s a question you can’t answer. It’s a question which asks “why should there be any jurisdictional rules?” And you think there should be.