Creeping informality at Supreme Court

AP News
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Posted: Nov 29, 2011 2:48 PM
Creeping informality at Supreme Court

The chief justice excuses himself for a mere hour and the Supreme Court starts sounding like a schoolyard. At a very good school, but still.

It's not every day that one lawyer arguing before the justices refers to another as "my buddy." Or that the government's lawyer winds up his argument by telling the justices, "Hope you like it."

But that's what happened Tuesday in a case about whether someone waited too long to file lawsuits over insider trading that occurred during the rise of technology stocks in the late 1990s.

Chief Justice John Roberts had left the courtroom before the argument began because he wasn't taking part in the case. He has not said why.

So the chief's center chair was empty and Justice Antonin Scalia, the longest serving justice, was nominally in charge.

The case involves 54 suits under federal securities law seeking to force investment banks that underwrote initial public offerings of stock during the dot.com bubble to cough up some of the quick profits they made from sales of that stock. According to the complaints, the banks engaged in various illegal practices, including pricing the shares too low.

Christopher Landau, representing the banks, told the court that such lawsuits had to be filed within two years of the sales and that there were many ways for people to track stock sales by company officers, directors and other so-called insiders. In fact, roughly eight years passed before the suits were filed.

Jeffrey Tilden, representing the plaintiff, who owned stock in the companies, told the court that it is not easy to find the information, especially when insiders ignore another provision of the law that requires a report of the sales be filed with the Securities and Exchange Commission.

"We disagree with my buddy, Mr. Landau," Tilden said. "Most trading today occurs electronically in the dark of night; it is invisible to everyone else."

Jeffrey B. Wall of the Justice Department urged the court to embrace neither lawyer's position. The red light signaling the end of his time was on when he found an unusual way to wrap up his argument.

"We've occupied the reasonable middle ground. Hope you like it," Wall said, drawing laughs throughout the courtroom, including from his former boss, Justice Clarence Thomas.

Said Scalia, "Thank you, Mr. Wall. That's a nice note on which to end."