SCOTUSBlog linked a Dahlia Lithwick dispatch:
[Crooks] is in the unenviable position of having to persuade the justices that his case isn't moot. Crooks states that even though his client is no longer in the United States, "he is still subject to the supervised release portion of his sentence." An incredulous Chief Justice John Roberts wonders how a deportee can possibly be subject to his probation conditions if there is no one to supervise him. Crooks replies that his client is still not allowed to "use alcohol, or associate with persons..." (He is interrupted here.)
Crooks adds that there are cases in which deportees have been extradited back to the United States based on violations of their supervised release, and that he may in the future want a visa to visit the United States, since his children live here. Justice Scalia says that "the doctrine of standing is more than an exercise in the conceivable.... Nobody thinks your client is really, you know, abstaining from tequila down in Mexico because he is on supervised release in the United States."
Dahlia Lithwick spends a chunk of her first 2006 SC Dispatch comparing the decorum of the Supreme Court with the tastelessness in the legislative sphere. Her job is easy by the way, since the Court has a new policy of basically same day postings of oral argument transcripts. Since they recently have labeled who is asking questions and such, instead of just saying "The Court" (thus, we had to rely on tone, word choice, and advocate comments* to determine who was talking), the general public (and the press) can immediately get a good feel of oral arguments (minus the facial expressions and such) even with C-SPAN coverage. Since DL just had a baby, who knows? Maybe, she can just work from home?** Anyway, simply put, Dahlia might not know "where the tequila comment should register on the nation's macaca-meter," but I think is a rather lame comparison.
This aside from all the other baggage Sen. Allen has to carry. Scalia can be crude, but I think is somewhat less tasteless -- well, okay, no need to go there. Still, I'd use a better comment than this to show "Scalia's deliberate carelessness with language." As to the standing point, it does sound a bit dubious. Still, looking at the transcript (which even has a concordance of key words mentioned, which the old transcripts did not have -- some legal sorts will have a field day) suggests there were cases where a person out of the country returned to the U.S. and were liable to get in trouble once more. Likewise, another technical point was noted in which a win here could be beneficial "should he ever want to get a nonimmigrant visa in the future to come visit his U.S. citizen children."
As to the substance of the case, as I noted a couple days touching upon an important problem, on some core level this really is not as bad as it sounds:
Deputy Solicitor General Edwin Kneedler defends the government position, and the liberal justices pound at him awhile over the basic unfairness of a system that would allow for deportation, based on the random accident of which state you were in when you broke the law. ... Even Scalia balks at Kneedler's "double inconsistency" that could preclude a deportation if a state treated a crime more leniently than federal law, concluding "you've thoroughly confused me."
Well, yes, that is how things work: different states have different laws, including respecting when something is so serious that it becomes a felony. This is not nature of our federalist system. Do we not have any federal rule, yes including for really important things, depending on whether or not one broke the law? Or, comparably, seriously did so? Let's say we believe a federal judge should be a convicted felon, even as a rough qualification when determining who to choose or confirm. The test is respect for the law. As shown, the matter works both ways. And, we are not dealing with a matter that is not criminal at all on the federal level ... just in some cases, less so. A rough comparison, surely, but enough to deal with the basic principle.
The law apparently is unclear. This is a separate issue and given the result, might be compelling. Federal policy as to immigrants is excessive, but tying it to violations of state criminal law seems rather reasonable. The actual statute, as suggested by the transcript, is a bit more involved. Apparently, and this led to confusion, some parts of the law reference state practice, but only if the law in some fashion (even as a misdeamenor) violate federal law. Thus, State A might declare something a felony, even if federal law in other contexts do not, and here (and immigration rules do not necessarily even tie to prosecution alone) this might be enough. This is not necessarily a bad thing -- federalism respects some variable results. And, given the leaning of the Court, it might be a good thing for other defendants for the case to be held moot.
Procedural safeguards sometimes are only of some merit when substantive unfairness is what is ultimately at stake. Perhaps, here, we need to deal with the more offensive -- in more ways than one -- branches directly. Still, especially since media articles can -- given various limitations of the genre (including spending much time on non-legal sidebar issues) -- deal with part of what happened, being able to refer to online transcripts can be quite useful. The tendency of narrow rulings of late suggest nuances that one might pick up there make the complete record still more important.
Up to a point, surely, but still worth the effort. So would consistent audio/video, but we take what we can get.
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* This is Breyeresque: "Ah, but you don't mean that, because you're prepared to concede -- at least I thought you were until your last argument -- you're prepared to concede that if a person engages in a crime that is punishable as a felony under South Dakota law and it is also punishable as a felony under Federal law under 801, et seq, well, that counts." OTOH, Ginsburg and Souter can be similarly tedious. Statements like "you and Justice Stevens were debating" also provides a "key" to determining who's who, sort of like those used by code breakers or those trying to decipherer some unknown language.
** NY Daily News coverage comments that Trachsel missed his last start for "marital" reasons, a clarification of the previous (unspecified) "family" reasons supplied. Rather coyly, nothing else is supplied, except that his wife told the reporter who called that divorce is not being planned and please leave me alone. No reference was made to the ongoing Lo Duca divorce proceedings. I reckon the NY Post might not have been as restrained.