Frew v. Hawkins - Oral Argument - October 07, 2003 Page 16

Frew v. Hawkins

Media for Frew v. Hawkins

Audio Transcription for Opinion Announcement - January 14, 2004 in Frew v. Hawkins

Audio Transcription for Oral Argument - October 07, 2003 in Frew v. Hawkins

Stephen G. Breyer:

That has nothing to do with Federal law whatsoever.

We don't want to give every child a hair cut.

Can you get the decree modified under 60(b)?

R. Ted Cruz:

--Yes.

Stephen G. Breyer:

Yes.

All right.

Well, then if you could get it modified under 60(b), this isn't really a solution.

You don't need your solution.

You can go in under 60(b).

R. Ted Cruz:

And that's what the Fifth Circuit treated what we did.

So we--

Stephen G. Breyer:

All right.

So then there's no problem.

We're all in agreement.

R. Ted Cruz:

--We will prevail either way.

Stephen G. Breyer:

So if we think you have a right to go in under 60(b), is that the end of the case?

R. Ted Cruz:

If... if what we did is deemed that, because--

Ruth Bader Ginsburg:

Mr. Cruz--

--You have to assume that it's too onerous, that everything that goes... goes a bit beyond what Federal law demands is, quote, too onerous.

Is that... is that your theory of 60(b)?

R. Ted Cruz:

--It's not a bit beyond and... and one important caveat of 60(b) is most of this Court's 60(b) cases are in a context where the State or a State official is not a defendant.

William H. Rehnquist:

Well, 60(b) is basically changed circumstances or changed law, isn't it?

R. Ted Cruz:

It is.

And--

Ruth Bader Ginsburg:

But beyond that, Rufo said that when you're dealing with a State or a municipality, that the 60(b) is more flexible than it would be if you were dealing with a private party.

R. Ted Cruz:

--It... it did.

Rufo was easing the standards for modification, and Rufo did not address the Eleventh Amendment.

That was not an issue that was litigated, and the Court--

Ruth Bader Ginsburg:

Yes, but we're talking about 60(b).

And I think the... the... you're saying, well, this is essentially the same thing.