A “view” from the East Room: The Brett Kavanaugh story

A “view” from the East Room: The Brett Kavanaugh storyI’m in an Uber on my way to the White House for President Donald Trump’s announcement of his Supreme Court nominee when we hit a time warp of sorts. A few blocks of Pennsylvania Avenue just west of the White House are being transformed to the era of President Ronald Reagan by film crews for […]

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A “view” from the East Room: The Brett Kavanaugh story

I’m in an Uber on my way to the White House for President Donald Trump’s announcement of his Supreme Court nominee when we hit a time warp of sorts.

A few blocks of Pennsylvania Avenue just west of the White House are being transformed to the era of President Ronald Reagan by film crews for “Wonder Woman 1984,” the sequel to the hit 2017 movie about the female superhero that has been filming around the city the last few weeks. Since much of Washington looks like it could still be in the 1980s, the crew does not appear to have had to make too many dramatic period touches for this outdoor scene.

Down the street, at 1600 Pennsylvania Avenue, a different set of writers and producers are putting the final touches on their own script that will aim to evoke the Reagan era.

When I arrive at the White House press quarters, there is a crew from a TV station in South Bend, Ind., where finalist Judge Amy Coney Barrett lives and maintains her 7th Circuit chambers. Cable news outlets are reporting that Barrett is at home this evening, so it appears this crew will not be getting a big local story. One technician mentions that Judge Thomas Hardiman of the 3rd Circuit, another of the four finalists (and one of the two “final” finalists), attended the University of Notre Dame in South Bend, so that would be a story for that crew. But they are in for disappointment.

Still, with just under an hour to go before the announcement, the Trump administration has again kept the president’s Supreme Court choice remarkably under wraps. There is a slight buzz among a few White House reporters that Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit will get the nod, but there are also well-known network TV news correspondents who are pressing any Trump administration official who walks by with questions such as, “So, is it Hardiman or Kavanaugh?”

At about 8:35 p.m., White House press office staff members wrangle the reporters for the short walk to the East Room. Last year, for the unveiling of Neil Gorsuch, we went up to the North Portico and through one of the main doors to the White House. This time, we are led on a walk through the building’s service level. If you ever wondered if there is a box crusher on the grounds of the White House, the answer is yes, and it is parked right outside the East Room.

Inside the ornate East Room, most of the president’s guests are seated as reporters enter at about 8:45 p.m. To the right of the small stage, in the front row, is Rudolph Giuliani, one of the president’s private lawyers in investigative matters that have gotten almost as much air time today as the Supreme Court vacancy.

Next to Giuliani, with one empty chair between them, is Leonard Leo, who is on leave from the Federalist Society to serve as Trump’s special adviser on the nomination.

In the front row on the other side of the stage is John Malcolm of the Heritage Foundation, who like Leo is partly responsible for the president’s list of 25 prospective nominees. Next to him is Maureen Scalia, the wife of the late Justice Antonin Scalia. And next to her is Edwin Meese, the Ronald Reagan Distinguished Fellow Emeritus at Heritage, and a former adviser to and attorney general under Reagan. And next to him is a Roman Catholic priest who will be introduced to all a little later.

Legal luminaries dot the room. On one side is Rod Rosenstein, the deputy attorney general, who won the case he argued before the Supreme Court in the just-ended term. In the middle of the room is Attorney General Jeff Sessions. And on another side is Greg Katsas, the former deputy White House counsel who helped usher Gorsuch’s confirmation hearing. Katsas is now on the D.C. Circuit. Top White House aides to the president abound, as well, including Chief of Staff John Kelly, Press Secretary Sarah Sanders, Marc Short, the director of legislative affairs and White House Counsel Don McGahn, who is said to have championed the nominee who will be introduced shortly.

Just behind my section of press seats, presidential counselor Kellyanne Conway greets Boris Epshteyn, the former White House communications aide to Trump who is now the chief political analyst for Sinclair Broadcast Group TV stations.

Vice President Mike Pence, who is said to have favored Barrett, his fellow Indianan, enters the room, trailed by a quite a few Republican senators, including Sen. Mike Lee of Utah, who was said to be under consideration at one point.

We don’t see any Democratic lawmakers or progressives of any kind. The three Democratic senators who voted for Gorsuch’s nomination—Joe Donnelly of Indiana, Heidi Heitkamp of North Dakota, and Joe Manchin of West Virginia—were said to have declined an invitation from the president to be here tonight. And last year, I bumped into Neal Katyal, the former acting U.S. solicitor general under President Barack Obama, on the White House grounds before the unveiling of Gorsuch. He supported that nomination and later introduced Gorsuch at his Senate confirmation hearing. There is no immediate sign of anyone like that here tonight.

First lady Melania Trump enters the room just before 9 p.m., when the TV correspondents, most standing on chairs, loudly deliver their live opens to their cameras, a spectacle the guests gathered in the East Room seem to find amusing.

Trump enters the room from the long center hallway and soon is thanking Justice Anthony Kennedy for his four decades of public service. A few heads look around the room, but Kennedy is not here tonight. (We think he is still in Salzburg, Austria, where just last Friday he was scheduled to have a reception with students participating a summer law school program.)

The president mentions that he chose Gorsuch to replace “the late, great Justice Antonin Scalia,” and he recognizes Maureen Scalia. He says that both Kennedy and Scalia “were appointed by a president who understood that the best defense of our liberty—and a judicial branch immune from political prejudice—were judges that apply the Constitution as written. That president happened to be Ronald Reagan.”

“In keeping with President Reagan’s legacy, I do not ask about a nominee’s personal opinions,” Trump says. “What matters is not a judge’s political views but whether they can set aside those views to do what the law and the Constitution require.”

And with that, he announces Kavanaugh as his choice. And the doors behind Trump on his right open and the new nominee enters with his wife, Ashley, and his daughters Margaret and Liza. There is sustained applause from the crowd.

Trump touts Kavanaugh’s legal credentials and community service before turning the microphone over to him.

Kavanaugh, who argued and lost one case before the Supreme Court, is perhaps reticent to adjust the microphone, which seems to have been set for the taller Trump. (There is a sign on the lectern in the Supreme Court advising lawyers not to touch the microphones, but they are permitted to crank the whole lectern up or down if they wish.) The result is that the microphone is aimed at Kavanaugh’s forehead as he speaks.

Kavanaugh points out his parents (Everett and Martha Kavanaugh), who are in the front row directly in front of him, next to Melania Trump.

“The president introduced me tonight as Judge Kavanaugh, but to me, that title will always belong to my mom,” the nominee says after noting that his mother had taught in the public schools in Washington before going to law school and becoming a prosecutor. (She later became a Maryland state judge.)

Kavanaugh says his father went to night law school while working full time. “He has an unparalleled work ethic and has passed down to me his passion for playing, and watching, sports,” he says.

He notes that for the past 11 years, he has taught “hundreds of students, primarily at Harvard Law School. I teach that the Constitution’s separation of powers protects individual liberty, and I remain grateful to the dean who hired me, Justice Elena Kagan.”

One or two audience members gasp slightly at the mention of the liberal justice.

“I am part of the vibrant Catholic community in the D.C. area,” Kavanaugh continues. “The members of that community disagree about many things, but we are united by a commitment to serve. Father John Enzler is here. Forty years ago, I was an altar boy for Father John. These days, I help him serve meals to the homeless at Catholic Charities.”

Kavanaugh refers to his “spirited daughters,” with Margaret loving sports and reading, while Liza also likes sports, “and she loves to talk.” He reaches out and gives her a hand slap.

He notes that he met his wife, Ashley, when both worked at the White House in 2001. (Ashley was a personal secretary to President George W. Bush while her husband was a counsel and later staff secretary to the president.)

“Our first date was on September 10, 2001. The next morning I was a few steps behind her as the Secret Service shouted out to all of us to sprint out the front gates of the White House, because there was an inbound plane,” he says, in a somewhat oblique reference to the terrorist attacks of Sept. 11 that year.

He closes by saying that he will begin his courtesy calls to U.S. senators on Tuesday morning.

“I will tell each senator that I revere the Constitution,” Kavanaugh says. “I believe that an independent judiciary is the crown jewel of our constitutional republic.”

With that, Trump leads Kavanaugh, his wife, and the two daughters down the center hallway.

In the coming days, advocates on both sides of the nomination will seek, in their own ways, to evoke a version of Washington from the 1980s. Kavanaugh’s supporters will fondly look to the days when Scalia, another sharp mind from the D.C. Circuit, could convince senators on both side of the aisle to overwhelmingly support his confirmation despite his deeply conservative views. (Scalia was confirmed 98-0 in 1986.)

Kavanaugh’s opponents will hark back to 1987, when another high court nominee from the D.C. Circuit, Judge Robert Bork, was painted as holding extreme and dangerous conservative views, and his nomination went down to defeat.

Pulling off a sequel like that would seem to require all the plot twists, special effects and movie magic that Kavanaugh’s antagonists can muster.

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A “view” from the courtroom: A river runs through it

A “view” from the courtroom: A river runs through itIt’s the last day the justices will take the bench for this term, with just two decisions pending. When the term ends, the justices will be scattering in short order. Justice Anthony Kennedy is heading to Salzburg, Austria, for his usual teaching stint with the University of the Pacific’s McGeorge School of Law. Check-in at […]

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A “view” from the courtroom: A river runs through it

It’s the last day the justices will take the bench for this term, with just two decisions pending.

When the term ends, the justices will be scattering in short order. Justice Anthony Kennedy is heading to Salzburg, Austria, for his usual teaching stint with the University of the Pacific’s McGeorge School of Law. Check-in at the dorms is this Sunday, and a reception with the justice is scheduled for July 6. Justice Ruth Bader Ginsburg will be the guest lecturer in Rome for the summer law program of Loyola University Chicago, along with her daughter Jane Ginsburg. Justice Neil Gorsuch is heading to Padua, Italy, where he and his former law clerk Jamil Jaffer will teach two courses in national-security law for the Antonin Scalia Law School at George Mason University, the Associated Press reports.

Mark Janus seated between Illinois Governor Rauner, left, and Liberty Justice Center’s John Tillman, waiting for opinion in Janus v. AFSCME

ScotusMap reports that Justice Stephen Breyer will be heading to the Aspen Institute in Colorado for a talk on July 7. Other justices are headed hither and yon.

As we expected, Gov. Bruce Rauner of Illinois and state worker Mark Janus are once again seated in the courtroom, for the third day in a row. But things are looking pretty good that they will get the opinion in Janus v. American, Federation of State, County, and Municipal Employees today.

Meanwhile, one of the lawyers involved in the other pending case, Florida v. Georgia, is here. Greg Garre, a former U.S. solicitor general who represents Florida in this case on the original docket, also takes a seat in the public gallery, not the bar section.

At about 9:55 a.m., Kennedy’s wife, Mary, arrives in the VIP box, accompanied by three young people who seem to be the Kennedys’ grandchildren. At about the same time, in the row of the public gallery closest to the VIP box, the marshal’s office seats a group of spectators including one adult and several smartly dressed children. We don’t know if these are also members of the Kennedy clan, but it seems possible.

There is some stirring in the press section about this. Last year, when there was a similar amount of speculation about a possible retirement by her husband, Mary Kennedy did not attend the last opinion day of the term.

Breyer’s wife, Joanna, is back in the VIP box today, for the third session in a row. There has been virtually zero speculation about a Breyer retirement.

The court takes the bench, and the chief justice quickly announces that Justice Samuel Alito has the opinion in Janus. It does not look like there will be a surprise outcome in that case. Still, Janus the person and Rauner show no reaction that Alito, who has led the effort to overrule 1977’s Abood v. Detroit Board of Education, which authorized public-employee unions to collect agency fees from workers who don’t join the union, has the opinion.

Alito can be quite brief with his opinion announcements, but today he delivers a fairly detailed summary of his 49-page opinion concluding that a state’s extraction of agency fees from nonconsenting public employees violates the First Amendment, and that Abood erred in concluding otherwise, cannot be supported by stare decisis, and is therefore overruled.

Alito says he will address in detail two of the dissent’s defenses of Abood, the “free rider argument” and the “Pickering argument,” from the court’s 1968 employee free speech decision in Pickering v. Board of Education of Township High School District 205, which as it happens, came from Illinois. The court held that a school district violated the First Amendment by firing a teacher who wrote a letter to a newspaper critical of the school administration.

He spends some time on the notion that agency fees keep nonmembers from free-riding on the unions’ collective-bargaining efforts. But he says those like the petitioner in this case “are not trying to get a free ride to a destination they don’t want to go to. They don’t want the free ride at all.”

Alito turns to the Pickering argument and stresses the principle that the job-related speech of public employees does not get much First Amendment protection.

“If an employee says, ‘My boss is an ignoramus,’” that is not going to be protected, Alito says.

He makes the point that union speech in collective bargaining cannot be separated from matters of public debate, pointing to the area of education, and saying speech in this area touches on matters such as merit pay, teacher tenure, and how teacher performance and student progress should be measured.

“Can anyone say these are only matters for teachers and schools?” Alito says. “We don’t think so.”

Alito continues, discussing four factors that he says “weigh heavily” for not giving stare decisis to Abood. By this point, Justice Elena Kagan, who went head-to-head with Alito in the 2014 decision in Harris v. Quinn, is wearing her reading glasses and looking down at papers.

Alito concludes that “for all these reasons, Abood must be overruled.” Justice Sonia Sotomayor has a dissent, he says. Kagan has a dissent, joined by Ginsburg, Breyer and Sotomayor.

And then Kagan, who has rarely dissented from the bench, speaks up, saying that she and the others “respectfully dissent from today’s decision overruling Abood v. Detroit.”

“There’s no sugarcoating today’s opinion,” she says. “The majority overthrows a decision entrenched in both this nation’s law and its economic life.”

Kagan is stern and sometimes angry-sounding as she goes on at some length. Alito, who sits immediately to her left, leans back in his chair and at times seems to be peeking over her shoulder at her statement.

“Today, the court succeeds in its six-year crusade to reverse Abood,” Kagan says, and “today’s decision will have large-scale consequences. Public-employee unions will lose a secure source of financial support.”

She concludes by saying the majority has “chosen the winners” in the policy debate over agency fees “by turning the First Amendment into a sword, and using it against workaday economic and regulatory policy.”

“Speech is everywhere,” she says, and almost all economic or regulatory policy affects speech.

“So the majority’s road runs long. And at every stop are black-robed rulers overriding citizens’ choices.”

When Kagan is finished, Roberts moves quickly to say that Breyer has the opinion “in Number 142 on our original docket, Florida v. Georgia.”

Breyer moves breezily to summarize the ruling in this water dispute that he acknowledges is not a blockbuster.

“This is a technical case,” he says, involving an interstate river basin involving the Flint and Chattahoochee Rivers, which begin near Atlanta, and flow south and meet the Apalachicola River in Florida. Five members of the court, he says, have concluded that the special master in the case applied too strict a standard in ruling against Florida.

The court remands the case to the special master for further proceedings, but not before putting a few dimes in the jukebox.

“If you wish to learn something of the beauty and the emotional appeal of this southeastern river basin, I could recommend songs, say, by Alan Jackson, who has one entitled ‘Chattahoochee.’ Even Bing Crosby and Bob Hope had one called ‘Apalachicola F.L.A.’”

“But if you wish to learn about water rights, equitable apportionment of river water among states, and other related legal and factual circumstances” about the basin, Breyer says, read the opinions, “which we hope, despite their length, hold legal interest.”

Breyer says that Justice Clarence Thomas has filed a “thorough” dissenting opinion, joined by Alito, Kagan and Gorsuch.

With that, the chief justice says he is “authorized to announce that the court has acted upon all cases submitted the court for decision this term.” He discusses the order list that will be released on Thursday morning, and thanks Supreme Court employees and members of the Supreme Court bar.

“Before we rise for the summer, I would like to note the retirement of three court employees,” Roberts continues. This is a tradition, and it does not typically include justices. Nor will it today.

The chief justice recognizes Corporal John Gilliam of the Supreme Court police department, who will retire at the end of the month after 20 years of service, and Cristi Cherry, a paralegal specialist and secretary to the court’s legal counsel, retiring this month after 23 years of Supreme Court service.

“Finally, my administrative assistant, Diane Nelson, has announced she is retiring July 12, with 12 years of Supreme Court service,” Roberts says. “I am personally grateful to Diane for her dedication, hard work, and friendship.”

Roberts wishes all three well in their retirement. Kennedy has taken this all in without betraying any hint of what is to come this afternoon.

Marshal Pamela Talkin bangs her gavel to close out the session, and the justices make their way through the red velvet curtains, one for the last time.

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A “view” from the courtroom: The “court of history” is in session

A “view” from the courtroom: The “court of history” is in sessionHeading upstairs to the courtroom this morning, we overhear a court employee telling some members of the public who will make it inside, “Welcome to today’s non-argument session.” Although the court officially refers to opinion days such as today as “non-argument sessions,” that description will be tested today by justices offering arguments and opinions on […]

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A “view” from the courtroom: The “court of history” is in session

Heading upstairs to the courtroom this morning, we overhear a court employee telling some members of the public who will make it inside, “Welcome to today’s non-argument session.”

Although the court officially refers to opinion days such as today as “non-argument sessions,” that description will be tested today by justices offering arguments and opinions on both sides of two key cases. But we’re getting ahead of ourselves.

Next to last non-argument session, with opinions in NIFLA v. Becerra and Trump v. Hawaii

In the courtroom, Mark Janus and Gov. Bruce Rauner of Illinois are back in the center section of the public gallery, once again awaiting a decision in Janus v. American Federation of State, County, and Municipal Employees. It’s a good thing that the governor, who is running for re-election and is supportive of the challenge to the way public-employee unions have been doing business for more than 40 years, has nothing so pressing back in Illinois that it is keeping him from hanging out at the court.

Speaking of elections, today is primary election day in Maryland, where at least one member of the court is an eligible voter. Whether that member voted early or will be getting to the polls today, we hope he finds the “island of calm in which voters can peacefully contemplate their choices,” as Chief Justice John Roberts put it in the recent decision in Minnesota Voters Alliance v. Mansky, drawing on language from the state’s brief.

In the VIP box, we spot two spouses of the justices. Virginia Thomas, the wife of Justice Clarence Thomas, takes her seat, followed by Joanna Breyer, the wife of Justice Stephen Breyer, who was here yesterday.

Also in the justices’ guest box is Jordan Lorence of Alliance Defending Freedom. He is no doubt awaiting the decision in National Institute of Family and Life Advocates v. Becerra, in which ADF is representing crisis pregnancy centers challenging certain requirements imposed on them by California law. Lorence sometimes sits in the bar section, as we noted the other day, but this is the second time this spring he has snagged a seat in the VIP box.

On the bench this morning, all the microphones are properly positioned, unlike yesterday, when several were askew. When the court takes the bench, the chief justice announces that Thomas has the opinion in NIFLA.

Thomas begins summarizing how “crisis pregnancy centers” run by “pro-life” organizations were targeted by a California law that imposes certain requirements on them. Licensed clinics must notify women that California provides free or low-cost services, including abortions. Unlicensed clinics must notify women that they are not licensed to provide medical services. The provisions were upheld below.

“In an opinion on file with the clerk today, we reverse,” Thomas says.

The license-notice requirement likely violates the First Amendment, he says, adding that “California has less intrusive ways of informing women” that these services exist.

He soon moves on to the notice required of unlicensed centers, concluding that the provision unduly burdens protected speech and also likely violates the First Amendment.

Thomas is done within about five minutes, and he announces that Justice Anthony Kennedy has filed a concurring opinion, joined by Roberts and Justices Samuel Alito and Neil Gorsuch.

He says that Breyer has filed a dissent, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

Breyer is going to read part of his dissent, and there is no confusion about that, as there was yesterday.

He takes issue with the majority’s reasoning that the California law compels the crisis pregnancy centers to speak a particular message. The same can be said of much “ordinary health, economic, or social regulation,” he says.

“What about laws requiring hospitals to talk about vaccines or seat belts, laws requiring landlords to tell tenants about garbage disposal rules,” or laws requiring doctors, lawyers, engineers and accountants to disclose information to their clients, Breyer asks.

“There are even disclosure laws relating to petting zoos,” he says.

Breyer makes several points stemming from his view that the majority pays inadequate attention to “precedent directly on point, namely a case involving disclosure in the context of abortion.” He notes that in Planned Parenthood of Southeastern Pennsylvania v. Casey, in 1992, the court upheld a law that required doctors to tell women about state resources for adoption services.

“If a state can lawfully require a doctor to tell a woman seeking an abortion about adoption services, why should it not be able to require a medical counselor to tell a woman seeking prenatal care about childbirth and abortion services?” Breyer says. “After all, the law must be evenhanded.”

He makes several more points, but he also reserves some of his energy for later.

Roberts announces that he has the opinion in Trump v. Hawaii. As he says this, it seems to dawn on Janus and Rauner that today will not be the day for the decision in the Janus case.

The chief justice outlines the background of the president’s previous entry bans for citizens of certain Muslim-majority countries, which ended up with the September 2017 presidential proclamation that is known as the third version of the ban.

He notes that there are statutory challenges brought under the Immigration and Nationality Act, as well as a constitutional claim brought under the First Amendment’s establishment clause.

As Roberts discusses in some detail his conclusion that the proclamation does not violate the INA, Solicitor General Noel Francisco, who argued the case for the administration, sits forward in his chair at the counsel table and listens intently.

After disposing of the statutory claims, Roberts tackles the establishment clause claim.

“At the heart of plaintiffs’ case is a series of statements by the president and his advisers casting doubt on the official objective of the proclamation,” Roberts says.

He cites, among others, the best-known one, when candidate Donald Trump called for a “total and complete shutdown of Muslims entering the United States.”

He pauses for a moment before he says, “The president of the United States possesses an extraordinary power to speak to his fellow citizens and on their behalf.”

This power has often been used to combat bigotry, he notes, citing among other things comments by President George W. Bush at the Islamic Center in Washington in the days after the terrorist attacks of September 11, 2001, that the “face of terror is not the true faith of Islam.”

“Yet it cannot be denied that the federal government and the presidents who have carried its laws into effect have—from the nation’s earliest days— performed unevenly in living up to those inspiring words,” Roberts says.

The chief justice seems, momentarily, to be traveling down one path on a key issue in a major case and heading down the other path overall. That’s never happened before, right?

But he is soon back on the administration’s track.

“The issue before us is not whether to denounce” the president’s statements, the chief justice says. “It is instead the significance of those statements in reviewing a presidential directive, neutral on its face, addressing a matter within the core of executive responsibility.”

Roberts moves quickly through the arguments raised comparing the president’s proclamation with the Japanese internment policy upheld in 1944 in Korematsu v. United States.

Korematsu has nothing to do with this case,” Roberts says. The dissent’s reference to that case “affords this court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear,” Roberts says, quoting Justice Robert Jackson’s dissent, it “‘has no place in law under the Constitution.’”

Kennedy and Thomas have written concurrences, the chief justice notes, while Breyer has a dissent joined by Kagan, and Sotomayor has a dissent joined by Ginsburg.

Breyer says he and Kagan “focus primarily on a threshold issue. “The proclamation on its face is neutral and is of a kind that other presidents have issued,” he says. “But the many statements referred to in the respondents’ briefs, including those of the president, suggest the contrary. So which is it?”

Francisco, who barely moved a muscle as he leaned forward to listen to the chief justice, now is sitting back in his chair in a more relaxed posture.

Breyer continues for several minutes, concluding, “If we must decide the basic issue now, we would find the evidence, including the presidential statements set forth in Justice Sotomayor’s dissenting opinion, sufficient to set the proclamation aside.”

There is another pause before Sotomayor begins summarizing her dissent. By now, it is well past 10:30, and the courtroom is silent and somber.

“The United States of America is a nation built upon the promise of religious liberty,” Sotomayor says. “The court’s decision today fails to safeguard that fundamental principle.”

She provides her own catalogue of the president’s comments about Muslims.

“Despite numerous opportunities to do so, President Trump has never disavowed any of these hurtful statements,” she says. Unlike the majority, she says, “I am unwilling to throw the establishment clause out the window at the mere mention of a national-security concern.”

As alluded to by Roberts, Sotomayor makes several points about Korematsu. She cites Justice Frank Murphy’s dissent in the case for the view that the exclusion order was rooted in dangerous stereotypes about, among other things, a particular group’s supposed inability to assimilate and desire to harm the United States.

“Today, the court takes the important step of finally overruling Korematsu,” Sotomayor says regarding the chief justice’s words about the 1944 decision. (Whether the court has actually done that will be debated in the coming hours.)

“This formal repudiation of a shameful precedent is laud­able and long overdue,” Sotomayor says. “But it does not make the majority’s decision here acceptable or right.”

She sums up with a line that does not appear in her written dissent,

“History will not look kindly on the court’s misguided decision today,” she says. “Nor should it.”

When she is done, the chief justice is ready to announce that the end is in sight.

“This court will next sit tomorrow morning at 10 o’clock,” he says. “And at that time we will announce all remaining opinions ready during this term of the court.”

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A “view” from the courtroom: Wait, wait … there’s more

A “view” from the courtroom: Wait, wait … there’s moreToday is the last day scheduled on the court’s calendar for the justices to take the bench. But most observers are not expecting the court to issue all six remaining merits opinions. For one thing, although it was once routine for the justices to release as many as six opinions on a single day, the […]

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A “view” from the courtroom: Wait, wait … there’s more

Today is the last day scheduled on the court’s calendar for the justices to take the bench. But most observers are not expecting the court to issue all six remaining merits opinions.

For one thing, although it was once routine for the justices to release as many as six opinions on a single day, the court generally sticks to fewer than that these days. For another, Chief Justice John Roberts this past Friday did not give the customary indication that today would be the last one and “at that time we will announce all remaining opinions ready during this term of the court.” (I mistakenly suggested in Friday’s “view” that it was Marshal Pamela Talkin who makes that statement, but as some astute readers reminded me, it is the chief justice.)

Chief Justice Roberts stops Marshal Pamela Talkin from gaveling out the Court “prematurely” (Art Lien)

Inside the courtroom, there is a growing number of interested observers — those awaiting the result in a particular pending case. In the center section of the public gallery, Illinois state worker Mark Janus is here, awaiting a decision in Janus v. American Federation of State, County, and Municipal Employees Council 31, about whether public-employee unions may continue to collect agency fees from those members of a bargaining unit, such as Janus, who decline to join the union.

On Janus’ left is Gov. Bruce Rauner of Illinois, who launched the lawsuit that asks the court to overrule its 1977 decision in Abood v. Detroit Board of Education. Rauner was found to lack standing in the matter, but Janus and two other state employees intervened, which allowed the case to make its way here, where Janus is the sole petitioner.

Also in the courtroom today are participants in the Supreme Court Summer Institute for Teachers, a joint effort of Streetlaw Inc. and the Supreme Court Historical Society. Two groups of teachers from around the country come to Washington for several days of instruction, a moot court at Georgetown University Law Center and various events at the court itself.

The case for moot court this year was Carpenter v. United States, about whether the government’s review of cell-site location information was a search under the Fourth Amendment. The court held that it was in most instances. The moot court justices of the teachers institute, however, ruled for the government, both in a session that occurred a week ago before the real Supreme Court had ruled, and in the second session this past weekend, after they had the additional resource of 118 pages of opinions from the real justices.

The VIP box looks pretty full this morning, but we see only one justice’s spouse—Joanna Breyer, the wife of Justice Stephen Breyer. In the press section, meanwhile, we have a guest whose face should be familiar to anyone who watched “The Fourth Estate,” the Showtime documentary series about The New York Times and its coverage of President Donald Trump’s first year in office. Michael Shear, a White House correspondent for The Times who appears prominently in the series, is helping the newspaper’s Supreme Court correspondent, Adam Liptak, who is down in the press room to receive opinions.

When the real justices take the bench at 10 o’clock, the chief justice settles in and appears ready to give his routine announcement that today’s orders have been duly certified and filed with the clerk. But his long, thin, adjustable microphone is tilted practically skyward, and Roberts looks askance at it momentarily before moving it down. At least two other such microphones on the bench are in the same position, as if someone had moved them to dust the desks and not returned them to the proper positions.

Roberts announces that Justice Samuel Alito has the opinion of the court in … and here Rauner and Janus perk up expectantly, because an Alito assignment in the Janus case would be good news for them. But it’s not the Janus case, it’s Abbott v. Perez, a racial-gerrymandering case from Texas (and a companion case with the same caption).

“The background of these case is somewhat complicated, but I will try to keep this summary relatively short,” Alito says.

He provides some of the background of this case that began with a 2011 remap of Texas congressional and state legislative districts, which led to a later plan that continues to be challenged for some racially gerrymandered districts.

Alito does fairly quickly summarize that the court’s holdings today, that the justices have jurisdiction to review the orders of the three-judge federal district court effectively barring the use of the plan in this year’s election, and that the district court erred in requiring Texas to show that the state legislature in 2013 had purged the taint that the court had attributed to the 2011 plan.

The court has never held that past discrimination “flipped the burden of proof on its head,” Alito says. Except with respect to one Texas House district, Alito says the district court erred in enjoining the use of the districting maps adopted by the state legislature in 2013.

Justice Clarence Thomas has written a concurring opinion, joined by Justice Neil Gorsuch. Justice Sonia Sotomayor has written a dissent, joined by Justices Ruth Bader Ginsburg, Breyer and Elena Kagan.

Justice Clarence Thomas is up next with the opinion in Ohio v. American Express Co., a big-ticket antitrust case over the credit-card company’s contractual provisions with merchants.

Like everyone else in the world, Thomas says he will refer to the company as “Amex for short.” The contractual provisions at issue prohibit merchants from discouraging customers from using their Amex cards at the point of purchase, a practice known as steering. Amex earns most of its revenue from merchant fees, which tend to be higher than those of its competitors, such as Visa, Mastercard and Discover, who collect fees from merchants but also interest from cardholders.

Amex was sued by the United States and several states, who argued that the anti-steering provisions in its contracts with merchants violate federal antitrust law.

Thomas concludes for the court that they do not. The two-sided platform in this area, involving merchants and cardholders, is still just a single market because only a company with both will to be able to participate in the market. And the challengers have not met their burden of showing anti-competitive effects because their argument that Amex’s anti-steering provisions increase merchant fees wrongly focuses on just one side of the market.

Among other things, Thomas says, “Amex’s competitors have exploited its higher merchant fees to their advantage,” such as by being more widely accepted.

Thomas wraps up quickly, noting that Breyer has filed a dissent, joined by Ginsburg, Sotomayor and Kagan.

With that, before the chief justice says anything else, Marshal Pamela Talkin bangs her gavel, and court police officers begin to motion everyone to stand.

But wait. We’re apparently not yet done. Roberts interrupts Talkin and motions with his hands for all to remain seated. “Whoa, whoa,” he seems to say, then raising his hands to shoulder-height.

Breyer has a summary of his dissent to offer, and he starts delivering it even as there is still a small commotion of everyone settling back into their seats.

“The antitrust laws play a central role in our economic free-enterprise system,” he says. “This is a traditional Sherman Act, Section 1, antitrust case.”

He appears to ad lib the next line: “I don’t know if that excites you, but it is.”

Breyer provides his perspective on the anti-steering provision. Without such an agreement, a merchant might encourage a customer to use a lower-fee card, such as Discover, and might reward retail patrons with “a free shopping bag” or restaurant customers with “free butter.” (I’m not sure where Breyer dines where the butter costs extra.)

“But the merchant cannot do any of those things because of the nondiscrimination [or anti-steering] provision,” he says. “And the agreement thereby stops price competition in its tracks.”

He goes on at some length about the particulars of his dissent before seeking to put it in perspective. “I particularly fear the interpretive impact of the majority’s discussion of what it calls ‘two-side platforms,’ in an era when that term might be thought to apply to many internet-related goods and services that are becoming ever more important.”

“Just in case we’re wrong about everything I’ve said so far, and of course we’re not wrong,” Amex should still lose, Breyer says, before offering several reasons for that. (From the bench, he does not mention the term “laissez-faire capitalism”, which readers of the published slip opinion by this justice who sometimes delivers speeches in French are quickly pointing out is misspelled there as “lassez-faire.”)

More generally, he says, he wants to emphasize the importance of “traditional antitrust law,” which “insists on a freely competitive marketplace.”

“It has long helped this nation prosper by charting a middle path between monopoly capitalism and state economic control,” Breyer says. “Long gone, we must hope, are the days when great trusts unfettered by competition presided over the American economy.”

After a few more closing words, Breyer is finished, and so is the court for today.

With a slight smile on her face, Talkin bangs her gavel again, and says, the “honorable court is now adjourned until tomorrow at 10 o’clock,” with some emphasis on “now.”

And Roberts has not delivered the second-to-last day comment, so it appears there are two more opinion days for the four remaining opinions.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the petitioners in this case. However, the author of this post is not affiliated with the firm.]

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A “view” from the courtroom: “Some good and hard thinking on all sides”

A “view” from the courtroom: “Some good and hard thinking on all sides”It’s a rainy day in Washington, and some people entering the courtroom have wet shoulders. This opinion day was added only yesterday, and the public gallery is not completely full. The bar section is even emptier than it was yesterday, with a few regulars in attendance again because they are awaiting one decision or another. […]

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A “view” from the courtroom: “Some good and hard thinking on all sides”

It’s a rainy day in Washington, and some people entering the courtroom have wet shoulders. This opinion day was added only yesterday, and the public gallery is not completely full. The bar section is even emptier than it was yesterday, with a few regulars in attendance again because they are awaiting one decision or another.

Solicitor General Noel Francisco leads the contingent from his office, joined by his deputies Edwin Kneedler and Malcolm Stewart, as well as a handful of others.

In the VIP box, Jane Roberts, the wife of Chief Justice John Roberts, is here today. Across the courtroom, in the press seating, this leads to speculation that a decision could be coming from the chief justice in Carpenter v. United States, about warrantless police searches of cell-site location information. The chief justice is the only member of the court who hasn’t written a majority opinion out of the December sitting. Reporters’ guesses are usually correct, as long as one ignores all the times that our speculation misses the mark.

The bench as Chief Justice Roberts announces opinion in Carpenter v. United States (Art Lien)

The court takes the bench promptly at ten o’clock, and Roberts says that Justice Neil Gorsuch has the decision in Currier v. Virginia, an interesting case about double jeopardy.

Gorsuch launches into the story of petitioner Michael Currier, a Virginia man who was charged with various crimes connected to a safe full of guns that was dredged up from a river. The safe’s owner maintained that the safe had also contained $71,000 in cash, which was missing by the time it was found.

The defendant and the prosecution agreed to sever the various charges against Currier into two trials because the prosecution could introduce evidence of prior convictions to prove a felon-in-possession-of-a-firearm charge, which might prejudice the jury on the other charges.

Currier was acquitted in the first trial, involving burglary and larceny charges. He then sought to stop his second trial, arguing that it would be double jeopardy, or at least to exclude certain evidence from the first trial at the second.

Gorsuch delivers a fractured opinion that has a majority for the idea that because Currier consented to the second trial, his conviction on the felon-in-possession charge did not violate the double jeopardy clause.

The chief justice and Justices Clarence Thomas and Samuel Alito have joined in full, while Justice Anthony Kennedy has joined only Parts I and II and written a concurring opinion. Justice Ruth Bader Ginsburg has written a dissent, joined by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan.

Kagan is up next with Ortiz v. United States, involving a challenge to Airman First Class Keanu Ortiz’s criminal conviction for distributing pornography, when a judge on an U.S. Air Force appeals court also served on the Court of Military Commission Review, which reviews decisions from Guantanamo Bay. It is Kagan’s second opinion in a row implicating the appointments clause in Article II of the Constitution.

Kagan explains that in addition to the substantive issue — whether a statute or the appointments clause bars the judge’s simultaneous service on the two tribunals — there is an important jurisdictional issue. She points to the amicus brief filed by Professor Aditya Bamzai of the University of Virginia law school that questioned whether the Supreme Court had jurisdiction to review a decision of the U.S. Court of Appeals for the Armed Forces.

“We spend quite a lot of our opinion addressing that argument,” Kagan says from the bench, mentioning the Supreme Court’s 1803 decision in Marbury v. Madison.

“Maybe some of you remember Marbury,” she says, before giving a short history lesson. (Marbury came up quite a bit during oral argument in the case, and Steve Vladeck, who argued for Ortiz and other petitioners, will no doubt remember that Kennedy asked him whether he thought Marbury was right.)

I have my own memories of learning about Marbury in 8th grade social studies. I was the one who kept asking the teacher, Mrs. Froelich, whatever happened to William Marbury, and whether he ever got his commission as a justice of the peace. That was unimportant, she said, because it was the principle of the decision by Chief Justice John Marshall that mattered. Perhaps you should consider journalism if you are so interested in follow-up details, she advised.

Kagan goes on. “Now this case does not look much like Marbury,” she says, because Ortiz did not bypass lower courts as Marbury had. But she explores Bamzai’s arguments that military courts are different than Article III courts and the justices don’t have jurisdiction.

After explaining why the majority has rejected Bamzai’s arguments, she thanks him for his service as amicus.

“As I hope readers of today’s decision will agree when they read all the opinions in this case—including a concurrence and dissent, Professor Bamzai provoked some good and hard thinking on all sides,” Kagan says.

This brings us back to the substantive issue in the case, “which you’ve doubtless forgotten by now,” she says. Congress specifically authorized the kind of joint appointment on the Air Force appeals court and the military commission, and the appointments clause “doesn’t impose any rules against this kind of dual service.”

The decision below is affirmed, with Thomas filing a concurring opinion, and Alito filing a dissent that Gorsuch joined. Kagan then explains that two companion cases, Dalmazzi v. United States and Cox v. United States, are being dismissed as improvidently granted.

Thomas is up next with the opinion in WesternGeco LLC v. ION Geophysical Corp, a patent-infringement case.

In this dispute between two companies which offer systems used to survey the ocean floor, Thomas fairly quickly explains the case and concludes that WesternGeco’s jury award for lost foreign profits was a permissible domestic application of a provision of the Patent Act.

Gorsuch has filed a dissent, joined by Breyer.

Patent infringement is not something that Mrs. Froelich spent much time on in 8th grade social studies, unlike the double-jeopardy clause and Marbury, as well as the subject of the final decision this morning, the Fourth Amendment.

Indeed, the chief justice has the opinion in Carpenter. He opens by taking note of the wide use of cellphones.

“If you have a smartphone, it taps in” regularly to the nearest cellular tower, he says, when it is time- and location-stamped and collected into records known as cell-site location information, or CSLI.

He mentions “you” several times in his bench announcement, looking out to the audience in the courtroom and meaning, of course, all of us.

Roberts gives some of the details of the case involving petitioner Timothy Ivory Carpenter, whom authorities, using CSLI, connected to a series of robberies of Radio Shack and “ironically enough, T-Mobile stores.”

Prosecutors told the jury in Carpenter’s trial that the cell-location data placed the defendant “right where the … robbery was at the exact time of the robbery,” the chief justice related.

Roberts says “there is a world of difference” between the limited types of personal information that cellphone users give up on a given day and the exhaustive record of location information casually collected by wireless carriers.

Government cell-site monitors are “like an ankle monitor,” Roberts says, “allowing near perfect surveillance” at practically no expense.

He calls his opinion narrow and says the court is not limiting traditional investigative methods or implicating collection techniques involving foreign affairs or national security.

He quotes Justice Felix Frankfurter, from Northwest Airlines Inc. v. Minnesota in 1944, saying that the court, when considering new innovations in airplanes and radios, must tread carefully in such cases, “to ensure that we do not ‘embarrass the future.’”

In closing, the chief justice reaches further back, to 1928 and Justice Louis Brandeis’ dissent in Olmstead v. United States, which said the court is obligated — as “subtler and more far-reaching means of invading privacy have become available to the Government” — to ensure that the “progress of science” does not erode Fourth Amendment protections.

“We decline to grant the state unrestricted access to a wireless carrier’s database of physical location information,” Roberts says. In light of the deeply revealing nature of CSLI, its depth, breadth, and comprehensive reach, and the inescapable and automatic nature of its collection, the fact that such information is gathered by a third party does not make it any less deserving of Fourth Amendment protection.”

“The government’s acquisition of the cell-site records here was a search under that amendment,” he concludes.

Kennedy has filed a dissenting opinion, joined by Thomas and Alito. Thomas has filed a dissenting opinion. Alito has filed a dissenting opinion, joined by Thomas. And Gorsuch has filed a dissenting opinion. Despite some strong views in those dissents, none of the four speaks from the bench.

With that, Marshal Pamela Talkin bangs her gavel and announces that the court will return on Monday at 10. She does not invoke the traditional second-to-last day observation that the court will finish all its business in argued cases on that next day for opinions.

That most likely means two more days of opinions. That leaves the weekend for the justices to continue their good and hard thinking about their work.

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A “view” from the courtroom: Inching toward checkout for the term

A “view” from the courtroom: Inching toward checkout for the termWelcome back, guest user! It’s the first day of summer, and here at Viewfromthecourtroom.com, we are having a season-ending closeout sale, today featuring items from our April catalogue. It is another extra opinion day as the court winds down. In the sparsely populated bar section, Jordan Lorence of Alliance Defending Freedom takes a seat, likely […]

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A “view” from the courtroom: Inching toward checkout for the term

Welcome back, guest user!

It’s the first day of summer, and here at Viewfromthecourtroom.com, we are having a season-ending closeout sale, today featuring items from our April catalogue.

It is another extra opinion day as the court winds down. In the sparsely populated bar section, Jordan Lorence of Alliance Defending Freedom takes a seat, likely hoping for a decision in National Institute of Family Life Advocates v. Becerra. Arthur Spitzer, the head of the District of Columbia office of the American Civil Liberties Union, is shown to a seat near Lorence, and the two great each other amicably, even if their organizations are often at odds.

Deborah White, the president and general counsel of the Retail Litigation Center, an industry group that filed an amicus brief on the side of the state in South Dakota v. Wayfair, is here today.

The justices’ law clerks are taking quite a few spots in the alcoves on the south side of the courtroom this morning. Later today, they will be performing their skits at the court’s annual end-of-term party.

The justices take the bench right on time and Chief Justice John Roberts announces that Justice Neil Gorsuch has the opinion in Wisconsin Central Ltd. v. United States, a case about whether employee stock options are taxable compensation under the Railroad Retirement Tax Act of 1937.

During the Great Depression, Gorsuch explains, struggling railroad pension funds reached “the brink of insolvency.” It was a time when private railroads “employed large numbers of Americans,” so Congress felt the need to address the emergency with the statute.

It won’t be the only time today the court discusses shifts in the national economy.

Gorsuch mentions baseball cards, vinyl records and fidget spinners as items that have value expressible in terms of money, but that wouldn’t qualify as “money remuneration” under the RRTA. He concludes for the court that, although stock options fall within a broad definition of money, they aren’t taxable under the 1937 law.

He says that Justice Stephen Breyer has filed a dissent, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

Customers who read his opinion also looked at these works by the same author: Epic Systems Corp. v. Lewis and “The Future of Assisted Suicide and Euthanasia.”

Kagan is up next with Lucia v. Securities and Exchange Commission, about whether the commission’s administrative-law judges are “officers of the United States,” subject to the appointments clause in Article 2 of the Constitution.

Kagan explains that that the petitioner, Raymond Lucia, is “an investment advisor who marketed a retirement savings strategy called ‘Buckets of Money.’”

She pauses to let that the courtroom absorb that unusual name for an investment approach.  “The SEC thought Lucia’s sales pitch was deceitful and brought charges against him,” Kagan says. An ALJ from the agency presided over the adviser’s trial and found that Lucia had committed fraud.

But because the ALJ wasn’t appointed by an SEC department head, Lucia says every decision of the judge should be voided and “wiped off the books.”

“We agree,” Kagan says. An official qualifies as an “officer of the United States” if he holds a continuing office established by law, and exercises what the court has called “significant authority.” That second part is open to interpretation, she says, but here all the court has to do is follow a 1991 decision, Freytag v. Commissioner, which applied the test to special trial judges of the Tax Court and found they were constitutional “officers.”

“The exact same thing is true here,” Kagan says, as the SEC’s ALJs have all the same powers and do the same things as the Tax Court judges. So, the commission’s ALJ’s are “officers” and must be appointed in the proper way. Because the ALJ who presided over Lucia’s hearing was not, “it gets wiped off the books,” she says.

Justice Clarence Thomas has filed a concurring opinion, joined by Gorsuch. Breyer has filed an opinion concurring in the judgment in part and dissenting in part, in which Ginsburg and Sotomayor have joined as to Part III. And Sotomayor has filed a dissent, joined by Ginsburg.

Other recent works by this author include: Concurrences in Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission and Gill v. Whitford.

Sotomayor has the opinion in Pereira v. Sessions, about an interpretation of procedural rules under federal immigration law.

She writes for the court that a “notice to appear” for a removal proceeding  that fails to designate the specific time or place for the  proceeding is not a proper notice under federal law and thus does not trigger a rule known as the “stop-time” rule. That rule ends a nonpermanent resident’s status as a continuous resident, which is needed to apply for cancellation of removal.

Sotomayor notes that Justice Anthony Kennedy has filed a concurring opinion, while Alito has filed a dissent.

This author’s other works include: “My Beloved World,” “Mi Mundo Adorado” and “Turning Pages: My Life Story” (children’s book forthcoming in September).

Kennedy has the opinion in South Dakota v. Wayfair, about whether to overrule court precedents establishing the physical-presence rule for allowing states to require out-of-state sellers to tax internet purchases.

The fact that he has the assignment is practically enough to conclude that the physical-presence rule from 1967’s National Bellas Hess, Inc. v. Illinois Department of Revenue and 1992’s Quill Corp. v. North Dakota will be abandoned. Kennedy had invited the challenge in a recent concurrence. And given that the oral argument had left many wondering whether there were indeed five votes to rule for South Dakota, Kennedy is soon able to show that there are.

This reporter has  SCOTUSblog’s main account of the decision. From the bench, Kennedy stresses the changes to the “modern economy” wrought by internet commerce.

“The Internet revolution has made Quill’s error all the more egregious and harmful,” he says in a summary that touches on most of the main points of his opinion, without directly answering the dissent by Roberts.

Deputy Solicitor General Malcolm Stewart, who isn’t here today, argued as an amicus in support of South Dakota. He has had a pretty good June, both inside and outside the court, with his Washington Capitals winning the Stanley Cup two weeks ago.

Kennedy says that Thomas and Gorsuch have filed concurring opinions, while the chief justice has filed the dissent, joined by Breyer, Sotomayor and Kagan.

Customers who read this opinion also looked at “Berlitz Pocket Guide Salzburg” and “The Retirement Maze: What You Should Know Before and After You Retire.”

Are you sure you are ready to check out?

My own shopping cart has four opinions, a pack of baseball cards, a vintage 2017 fidget spinner, and—thanks to the chief justice’s dissent in Wayfair—some yarn, deodorant with antiperspirant and a package of Twix bars. Because the purveyor of these ideas and goods has a physical presence in my home jurisdiction, I guess I will be paying sales tax regardless of the effective date of the Wayfair ruling.

Marshal Pamela Talkin announces that the court will return on Friday, as the justices try to move their remaining stock of merchandise and make room for the new season.

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Opinion analysis: Court expands states’ ability to require internet retailers to collect sales tax

Opinion analysis: Court expands states’ ability to require internet retailers to collect sales taxJustice Anthony Kennedy had essentially invited a test case to overrule Quill Corp. v. North Dakota and its physical-nexus rule for the states being able to require out-of-state retailers to collect sales tax. So it was not a huge surprise that Kennedy had the opinion for the court today in South Dakota v. Wayfair. Except, […]

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Opinion analysis: Court expands states’ ability to require internet retailers to collect sales tax

Justice Anthony Kennedy had essentially invited a test case to overrule Quill Corp. v. North Dakota and its physical-nexus rule for the states being able to require out-of-state retailers to collect sales tax. So it was not a huge surprise that Kennedy had the opinion for the court today in South Dakota v. Wayfair.

Except, of course, that the oral argument in the case in April had left many observers wondering whether the court could get to a majority willing to overrule the 1992 Quill decision and its 1967 predecessor, National Bellas Hess Inc. v. Illinois Department of Revenue.

In an unusual voting lineup, the court did reach such a majority, and Kennedy announced that the physical-presence rule was unsound and incorrect, and that Quill and Bellas Hess were overruled.

Justice Kennedy with opinion in South Dakota v. Wayfair (Art Lien)

“In effect, Quill has come to serve as a judicially created tax shelter for businesses that decide to limit their physical presence and still sell their goods and services to a state’s consumers—something that has become easier and more prevalent as technology has advanced,” Kennedy wrote. “This Court should not prevent states from collecting lawful taxes through a physical presence rule that can be satisfied only if there is an employee or a building in the state.”

The opinion was joined by Justices Clarence Thomas, Ruth Bader Ginsburg, Samuel Alito and Neil Gorsuch, with Thomas and Gorsuch writing short concurrences.

Chief Justice John Roberts wrote a dissent that was joined by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan.

“E-commerce has grown into a significant and vibrant part of our national economy against the backdrop of established rules, including the physical-presence rule,” Roberts said. “Any alteration to those rules with the potential to disrupt the development of such a critical segment of the economy should be undertaken by Congress.”

The court was considering whether to overrule precedents that date from eras when out-of-state shopping meant shopping by mail-order catalog.

The states have been losing out on billions in sales tax revenue over the years, even as some big internet retailers such as Amazon have begun collecting sales tax regardless of whether they have a physical presence in the buyer’s state.

The states, along with some brick-and-mortar retailers and mom-and-pop stores that have been on the losing end of Quill, urged Congress to come to their rescue, but to no result.

In a concurrence in a 2015 Colorado case related to state sales and use taxes, Kennedy called for the court to re-examine Bellas Hess and Quill.

That prompted South Dakota, which has no state income tax and relies heavily on its sales and use taxes, to pass a new law in 2016. The statute imposes an “economic presence test” on out-of-state retailers to subject them to sales tax liability. The measure applies to any retailer with at least $100,000 in sales or at least 200 individual transactions in the state.

South Dakota sued several out-of-state internet retailers, seeking to require them to begin collecting taxes. Three decided to fight — Wayfair, a retailer of home goods; Overstock.com, a general retailer; and Newegg.com, which specializes in tech products.

The South Dakota Supreme Court agreed with the retailers that Quill remained the controlling precedent, and that the state could not bypass the physical-presence rule to impose sales taxes on the out-of-state retailers.

In his opinion for the court in Wayfair, Kennedy said that the physical-presence rule as defined and enforced in Bellas Hess and Quill “is an extraordinary imposition by the judiciary on states’ authority to collect taxes and perform critical public functions.”

He noted that 41 states, two U.S. territories, and the District of Columbia had joined an amicus brief on South Dakota’s side asking the court to reject the Quill test.

“That [the physical-presence rule] allows remote sellers to escape an obligation to remit a lawful state tax is unfair and unjust,” Kennedy said. “It is unfair and unjust to those competitors, both local and out of state, who must remit the tax; to the consumers who pay the tax; and to the states that seek fair enforcement of the sales tax, a tax many states for many years have consid­ered an indispensable source for raising revenue.”

He cited marketing materials from Wayfair. “Its advertising seeks to create an image of beautiful, peaceful homes, but it also says that ‘one of the best things about buying through Wayfair is that we do not have to charge sales tax.’ What Wayfair ignores in its subtle offer to assist in tax evasion is that creating a dream home assumes solvent state and local governments.”

There is “nothing unfair about re­quiring companies that avail themselves of the states’ benefits to bear an equal share of the burden of tax collec­tion,” Kennedy said.

Kennedy discussed at some length the changes to the national economy and retailing brought about by the internet.

“The Internet’s prevalence and power have changed the dynamics of the national economy,” he said, noting that mail-order sales in the United States in 1992 totaled some $180 billion, while e-commerce sales last year were estimated to be $453.5 billion. This expansion has increased the revenue shortfall faced by the states, he continued, citing estimates that range from $8 billion to $33 billion.

The retailers’ arguments based on reliance interests in the Quill rule were unpersuasive because the physical-presence rule has not been as clear and easy to apply as suggested, Kennedy said. Nationwide sales-tax collection may impose a burden on smaller sellers, he said, but “eventually, software that is available at a reasonable cost may make it easier for small businesses to cope with these problems.”

“And in all events, Congress may legislate to ad­dress these problems if it deems it necessary and fit to do so,” Kennedy said.

Thomas said in his concurrence that he should have joined Justice Byron White’s dissent in Quill in 1992. Gorsuch’s concurrence said, “My agreement with the court’s discussion of the history of our dormant commerce clause jurisprudence, however, should not be mistaken for agreement with all aspects of the doctrine.”

In his dissent, Roberts said he agreed that Bellas Hess was wrongly decided, but he went on to state that the majority’s view that the internet’s prevalence and power have changed the dynamic of the national economy “is the very reason that I oppose discarding the physical-presence rule.”

“If stare decisis applied with special force in Quill, it should be an even greater impediment to overruling precedent now, particularly since this Court in Quill tossed the ball into Congress’s court, for acceptance or not as that branch elects,” the chief justice said.

Roberts noted that Congress has been considering whether to alter the physical-presence rule, and “nothing in today’s decision precludes Congress from continuing to seek a legislative solution. But by suddenly changing the ground rules, the Court may have waylaid Congress’s consideration of the issue.”

The majority “proceeds with an inexplicable sense of urgency,” the chief justice said, and it “breezily disregards the costs that its decision will impose on retailers.”

There are complex distinctions made in more than 10,000 taxing jurisdictions, he said.

“New Jersey knitters pay sales tax on yarn purchased for art projects, but not on yarn earmarked for sweaters,” Roberts said, while Texas imposes a sales tax on plain deodorant but not on deodorant with antiperspirant, and Illinois treats Twix and Snickers bars differently for sales-tax purposes.

“The Court is of course correct that the nation’s economy has changed dramatically since the time that Bellas Hess and Quill roamed the earth,” Roberts said. “I fear the Court today is compounding its past error by trying to fix it in a totally different era. … I would let Congress decide whether to depart from the physical-presence rule that has governed this area for half a century.”

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case. The author of this post is not affiliated with the firm.]

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A “view” from the courtroom: Down to the last few matches

A “view” from the courtroom: Down to the last few matchesExtreme heat has descended on Washington, and outside the Supreme Court building there is a long line of tourists and others seeking seats to the courtroom, or perhaps just entry into the building and its hearty air conditioning. Earlier this morning, a friend spotted Justice Neil Gorsuch arriving for work and being let out of […]

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A “view” from the courtroom: Down to the last few matches

Extreme heat has descended on Washington, and outside the Supreme Court building there is a long line of tourists and others seeking seats to the courtroom, or perhaps just entry into the building and its hearty air conditioning.

Earlier this morning, a friend spotted Justice Neil Gorsuch arriving for work and being let out of an SUV in the company of a small dog. The justice and the dog got out in front of the Library of Congress’ Jefferson Building on First Street Northeast, evidently to allow for a short “constitutional” walk to the court building.

Chief Justice Roberts announces opinions in two partisan-gerrymandering cases (Art Lien)

Today is the last time this term there will be courtroom admissions to the Supreme Court Bar, and groups of lawyers to be admitted are again overflowing into the public gallery. The groups come from the U.S. Department of Justice, Georgetown University Law Center, and the Worcester Polytechnic Institute in Worcester, Mass. WPI does not appear to have a law school, so this group of alumni being sworn into the bar today must have received their law degrees elsewhere.

The bar admittees will be sworn in at the end of today’s session by Clerk of the Court Scott Harris, who is wrapping up a term that includes last fall’s introduction of electronic filing of briefs in paid cases. The change has widely been considered a success.

Ten o’clock arrives and the justices are running a little late. Perhaps they have been glued to the World Cup soccer match between Sweden and South Korea this morning. (We wonder whether any justice would request to be kept apprised on the bench of World Cup scores, the way some justices used to receive notes from their law clerks about important baseball scores during afternoon arguments.)

When the justices do take the bench at nearly two minutes past ten, it is the first full bench in a couple of weeks.

Justice Anthony Kennedy has returned after missing both of last week’s opinion days. It turns out that he was in New York City celebrating graduations of a grandchild of his on each of those days. At the Packer School in Brooklyn, according to parents who tweeted about the appearance, Kennedy was the speaker and referred to several countries where democracy is struggling, saying that the world is watching to see whether America’s freedom is working.

Kennedy even made it into the pages of the New York Post, a newspaper founded by Alexander Hamilton, the subject of the justice’s favorite hip-hop musical. The paper referred to Kennedy as “the judge” and quoted a witness who saw the justice and his family entourage at a celebratory meal in the Williamsburg section of Brooklyn as saying, “Judge Kennedy even stood up during his meal to compliment the live jazz band playing, and got their contact information for a soiree later this summer.”

Before any summer soirees, the justices still have business to finish. Chief Justice John Roberts announces that Justice Sonia Sotomayor has the opinion in Rosales-Mireles v. United States. Sotomayor removes her glasses to read a brief summary of the decision, which holds that a miscalculation of the U.S. sentencing guidelines that is plain and affects a defendant’s substantial rights calls for a federal appeals court to exercise its discretion under the Federal Rules of Criminal Procedure and vacate the sentence in the ordinary case.

The court has determined that petitioner Florencio Rosales-Mireles’ case is such an ordinary case, and that failing to correct an error in his sentencing will “seriously affect the fairness, integrity, and public reputation of judicial proceedings.”

Justice Clarence Thomas has filed a dissent, joined by Justice Samuel Alito.

Justice Stephen Breyer is up next with another sentencing guidelines opinion, in Chavez-Meza v. United States. The decision is about how much explaining a sentencing judge must provide when lowering the sentence of a convicted criminal who applied for a reduction based on changes in the guidelines.

Breyer stumbles over the word “methamphetamine” from his opinion, saying “meta-phetime.” In explaining that the court is rejecting Chavez-Meza’s argument that judges must say more when the reduced sentence was not “proportionate” to the old one, Breyer says, “We are not aware of any such legal requirement, and given the logarithmic nature of the guidelines’ sentencing table, we believe many judges in many contexts would be hard pressed to know just what ‘disproportionate’ means.”

He adds, as an aside, “Or maybe, like me, what ‘logarithmic’ means,” and gets a laugh.

Kennedy has filed a dissent, joined by Sotomayor and Justice Elena Kagan. Gorsuch took no part in the case.

Chavez-Meza was the case in which the government’s side was argued in April by Deputy Attorney General Rod Rosenstein. The word “logarithmic” was not uttered during the argument. In case Rosenstein is too busy to be looking for the outcome online, one of the 40 or 50 Justice Department lawyers in attendance today will surely inform him that he won.

Kennedy is next with Lozman v. City of Riviera Beach, Florida, a ruling breathlessly awaited by hosts of Supreme Court podcasts all over the world. This case involves petitioner Fane Lozman, who sued his Florida city for First Amendment retaliation after his 2006 arrest at a city council meeting.

Kennedy explains that Lozman’s case addresses the intersection of principles that define lawful arrests and principles that prohibit the government from retaliating against a person for exercising his right to free speech. But he quickly notes that Lozman did not sue the officer who arrested him, but the city, and there is a presumption that the officer acted with probable cause.

The question of whether a retaliatory arrest must be governed by one line of the Supreme Court’s precedents or another “must await a different case,” Kennedy says. Instead, the court holds that the existence of probable cause does not bar Lozman’s First Amendment retaliation claim under the circumstances of his case, and it remands the case for further proceedings.

Thomas has filed a dissent.

The chief justice announces that “I have the opinion in Number 16-1161, Gill v. Whitford.” The political-gerrymandering case from Wisconsin is the oldest pending case of the term and was considered potentially one of the most consequential. Most “logarithmic” or other mathematical tables suggested that Roberts would be writing the opinion, because he was the only justice who had not yet written a majority opinion from October’s nine-case sitting.

It becomes pretty clear fairly quickly that the court has found a lack of standing among the plaintiffs who challenged Wisconsin’s state legislative remap.

The fundamental problem with the plaintiffs’ case as presented on this record, Roberts says, is that “it is a case about group political interests, not individual legal rights.”

The case is remanded to the U.S. District Court for the Western District of Wisconsin to allow the individual plaintiffs to prove they live in “packed” or “cracked” voting districts.

Every justice has signed on to most of the chief justice’s opinion, with the exception that Thomas and Gorsuch decline to join Part III, which orders the remand. Thomas files an opinion along that line concurring in part and concurring in the judgment, joined by Gorsuch. Kagan has also filed a concurring opinion, joined by Ginsburg, Breyer and Sotomayor.

Roberts next announces that the court has a per curiam decision in Benisek v. Lamone, the other political redistricting case of the term. The court has affirmed the U.S. District Court for Maryland, which had denied an effort by Republican voters in a Maryland district to get a preliminary injunction blocking the 6th Congressional district.

“The balance of equities tilted against” the preliminary injunction, Roberts says in summarizing the per curiam. There were no dissents.

With that, Roberts turns to Marshal Pamela Talkin, who with her voice back at full strength announces that the court will be in recess until Thursday at ten o’clock. Barring any overriding interest in a Denmark-Australia World Cup match that will be ending around that time, we expect that the justices will make it to the bench on time.

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A “view” from the courtroom: “Only a few more days”

A “view” from the courtroom: “Only a few more days”It’s the first “extra” day for opinions of this term, and that fact is reflected in the courtroom. The public gallery is pretty full, but the bar section is almost entirely empty. With no bar admissions, the court’s impromptu extra opinion days rarely attract a large number of members of the Supreme Court bar, with […]

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A “view” from the courtroom: “Only a few more days”

It’s the first “extra” day for opinions of this term, and that fact is reflected in the courtroom. The public gallery is pretty full, but the bar section is almost entirely empty.

With no bar admissions, the court’s impromptu extra opinion days rarely attract a large number of members of the Supreme Court bar, with some exceptions — say, for the very last day of the term once it is announced.

Solicitor General Noel Francisco takes a seat at one of the two counsel tables, along with eight members of his office. Only nine other lawyers fill seats in the bar section.

The most prominent is Michael Farris, the president and general counsel of Alliance Defending Freedom. The legal group has already won the judgment in Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, subject to a continuing debate about the scope of the holdings in the case. On Friday night, according to numerous promos that have run this week, the ABC show “What Would You Do?” will feature the issue by seeing how bystanders react when a lesbian couple is refused a wedding cake by a baker. (These principals are all actors playing out the scenario at hand for the unsuspecting observers.)

Farris argued on behalf of the petitioners in National Institute of Family and Life Advocates v. Becerra, a pending case about whether a California law that requires “crisis pregnancy centers” to provide their patients with certain information — including, for some, about the availability of low-cost or free abortions — violates the First Amendment.

The decision in that case will not come today.

About a minute or so past 10 o’clock, the court takes the bench, minus Justice Anthony Kennedy, who was also absent Monday. Marshal Pamela Talkin begins the traditional opening, “Oyez! Oyez! Oyez!” She is battling something that is reducing her voice to a strained rasp, and she turns toward the audience with an apologetic smile.

“All persons having business … before the honorable, the Supreme Court of the United States, … are admonished to draw near and give their attention, … for the court is now sitting,” Talkin says, her voice weakening as she tries to finish each line.

“God save the United States and this honorable court,” she says, again struggling to get the words out.

A couple of members of the court have turned to look at Talkin as she tries to get through the normally routine cry. Once she finishes, Chief Justice John Roberts says, “Don’t worry, court marshal, only a few more days left.”

The audience laughs, and Talkin appears relieved.

Roberts announces that Justice Ruth Bader Ginsburg has the first opinion, in Animal Science Products Inc. v. Hebei Welcome Pharmaceutical Co. Ltd. Ginsburg writes for a unanimous court that a federal court determining foreign law under the Federal Rules of Civil Procedure should accord “respectful consideration” to a foreign government’s submission, but is not bound to give “conclusive effect” to the foreign government’s statements.

This means the revival of the respondent’s U.S. antitrust suit against Chinese companies for allegedly price-fixing their Vitamin C exports.

As Ginsburg reads her summary, Justice Neil Gorsuch is wearing his reading glasses and staring down intently at some papers. Just over a year ago, on June 12, 2017, Gorsuch delivered his first opinion from the bench. His opinion in Henson v. Santander Consumer USA Inc. included a grammar lesson, with the justice using the phrase, “The burnt toast is inedible.”

As it happens, we absent-mindedly gave our cinnamon raisin bread a second cycle in the toaster this morning, and it ended up burnt and inedible.

Moving along, Roberts announces that he has the opinion in Minnesota Voters Alliance v. Mansky, a case about Minnesota’s ban on political apparel at polling places.

This case was the basis for a colorful and lively oral argument in February, with Justice Samuel Alito most notably drawing out some of the inconsistencies of the state’s enforcement of its statute with questions about whether a long list of hypothetical T-shirts might violate the law. So some observers thought he might be writing the opinion in this case.

But the chief justice has taken the assignment. His summary, like his written opinion, leads with the question of whether Minnesota is pursuing a permissible objective in barring voters from wearing certain expressive clothing or accessories in the polling place.

“Casting a vote is a weighty civic act, akin to a jury’s return of a verdict, or a representative’s vote on a piece of legislation,” Roberts says. “It is a time for choosing, not campaigning. The state may reasonably decide that the interior of the polling place should reflect that distinction.”

The view that certain campaign clothing and accessories should remain outside the polling place, shared by several other states besides Minnesota, the chief justice points out, is worthy of respect from the court.

“But the line must be reasonable,” he continues, pointing to the state’s 2010 Election Day policy, which suggested that “issue oriented material designed to influence or impact voting” would run afoul of the law.

“What qualifies as an ‘issue’?” the chief justice says. “Any number of associations, educational institutions, businesses, and religious organizations could have an opinion on an issue confronting voters in a given election.”

He cites AARP, the World Wildlife Fund and the ice cream maker Ben & Jerry’s as all having “stated positions on matters of public concern.”

A shirt declaring “All Lives Matter” could be “perceived” as political, the court was told at oral argument. But a shirt displaying a rainbow flag could be worn “unless there was an issue on the ballot” that “related somehow … to gay rights,” he adds, quoting the lawyer defending Minnesota’s law.

A shirt simply displaying the text of the Second Amendment would be prohibited, the court was advised, but a shirt with the text of the First Amendment would be allowed, the chief justice adds, reflecting the state’s responses to the Alito’s questions.

Roberts concludes by saying that Minnesota “has not supported its good intentions with a law capable of reasoned application.”

Justice Sonia Sotomayor has written a dissent, joined by Stephen Breyer, the chief justice explains.

With that, there is a slightly startling bang of Talkin’s gavel, and she summons as much of her voice as she can to say that the court will be in recess until Monday.

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A “view” from the courtroom: Chipping away at the caseload

A “view” from the courtroom: Chipping away at the caseloadEven with a number of major decisions pending, and just a couple of weeks left in its term, the Supreme Court is taking a back seat in the minds of many in Washington, either because much of the city is still celebrating a Stanley Cup for the Washington Capitals, or because attention is focused on […]

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A “view” from the courtroom: Chipping away at the caseload

Even with a number of major decisions pending, and just a couple of weeks left in its term, the Supreme Court is taking a back seat in the minds of many in Washington, either because much of the city is still celebrating a Stanley Cup for the Washington Capitals, or because attention is focused on the United State-North Korea summit meeting taking place in Singapore this week.

We bump into Solicitor General Noel Francisco on our way up to the courtroom and ask whether Deputy Solicitor General Malcolm Stewart will be present today. Francisco isn’t sure. Typically, several members of the SG’s staff, though not all, attend opinion announcements.

Stewart is a diehard, season-ticket-holding fan of the Capitals, who defeated the Las Vegas Golden Knights last Thursday to clinch their first National Hockey League championship.

The deputy solicitor general does not appear in the courtroom today. But perhaps he will make it to the Capitals’ championship parade on Tuesday, which will travel right past the Department of Justice building on Constitution Avenue. Stewart will be the one with a formal morning coat over his Caps jersey.

The courtroom is packed again today. We don’t see any spouses of the justices in their section. As we will learn from bar admissions at the end of the session, the lawyers being sworn in to the Supreme Court Bar will number nearly 150, and like last week will flow over from the bar section itself to take up more than 40 seats in the public gallery.

The groups include alumni of South Texas College of Law Houston and New England School of Law. (That’s how the latter law school is introduced, though its website indicates that its proper name is New England Law Boston.) Apparently these institutions with the broad regional monikers don’t want anyone thinking they are based in places such as Matamoros, Texas, or Rutland, Vt.

A third group is from the American Bar Association’s Senior Lawyers Division, which specializes in elder law and, according to its website, “assists lawyers and judges transitioning in their careers.”

When the justices take the bench, the one member who is under the most scrutiny for a possible career transition, Justice Anthony Kennedy, is not among them. We don’t know his whereabouts, but it is not uncommon at this time of year for a justice to miss an opinion day because of travel.

Chief Justice John Roberts is present, as usual, just four days after delivering yet another graduation address, this one at the graduation of his and Jane Roberts’ daughter, Josephine, from Stone Ridge School of the Sacred Heart, in suburban Maryland. The chief justice gave a poignant and widely praised speech last year at the 9th grade graduation of his son, Jack, from Cardigan Mountain School in New Hampshire.

By at least one account, Roberts was again funny and thoughtful at his daughter’s graduation last week, where the head of school introduced him as “Josie Roberts’ dad.”

He is now obligated to top himself at just one more high school graduation, two college commencements and an unknown number of graduate or professional school ceremonies as his two children complete their educations. So, no pressure.

The chief announces that Justice Elena Kagan has the opinion of the court in Sveen v. Melin, about whether a Minnesota law providing that a divorce revokes any “revocable beneficiary designation” made to a former spouse violates the contracts clause in Article I of the Constitution.

This case made for a lively argument in March featuring Supreme Court specialists Adam Unikowsky, for the children of a Minnesota man who died in 2011, and Shay Dvoretzky, for the man’s ex-wife, who was the primary beneficiary of the man’s life insurance policy. (It is not clear from the record, and did not come up at oral argument, how much that policy was worth.)

The children argued that the proceeds should go to them because the state law canceled the ex-wife’s beneficiary designation. The ex-wife argued that because the law had not been adopted at the time the insurance policy was purchased and she was designated, any application of that law to her situation would violate the contracts clause.

Kagan explains that the Minnesota statute does not substantially impair pre-existing contractual arrangements, and thus applying it retroactively does not violate the contracts clause.

She says from the bench that the statute “mostly doesn’t upset settled expectations” and that “no one can reasonably expect” a beneficiary designation like the one in this case “to survive such a marital breakdown.”

“Today’s holding is not novel,” Kagan says. She mentions that Justice Neil Gorsuch has filed a dissent, without having to say that everyone else has signed on to her opinion.

Justice Samuel Alito is up next with Husted v. A. Philip Randolph Institute, one of the more closely watched cases of the term. This is about whether a law the state of Ohio relies on to remove from its rolls voters who have changed residence violates any provisions of the National Voter Registration Act.

The Ohio measure cancels the registration of voters who do not go to the polls and who then fail to respond to a notice mailed to their addresses and do not vote within the next four years.

As he puts it from the bench, “We are asked whether this program complies with federal law. We hold that it does.”

Alito focuses on the federal voting law’s provision barring the removal of voters “by reason of the person’s failure to vote.” A later congressional amendment to that provision makes it clear that the statutory phrase “by reason of the person’s failure to vote” in the clause does not categorically preclude the use of nonvoting as part of a test for removal.

“We do not have the authority to second-guess Congress or to decide whether Ohio’s supplemental process is the ideal method for keeping its voting rolls up to date,” Alito says.

Roberts, Kennedy, Justice Clarence Thomas and Gorsuch have joined Alito’s opinion, with Thomas also filing a concurring opinion.

Justice Stephen Breyer, who was quietly chatting with Thomas during Alito’s opinion announcement, has written the lengthy dissent, joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor as well as Kagan. Sotomayor has a five-page separate dissent as well.

The third decision is in China Agritech Inc. v. Resh, about a putative class action by a shareholder. Ginsburg writes for a unanimous court, and goes on at some length in the kind of procedural case she seems to relish, explaining that upon the denial of a class certification, a plaintiff may not initiate a new class action beyond the applicable statute of limitations.

Finally, Roberts announces that in Washington v. United States, a case about tribal fishing rights, the judgment below is affirmed by an equally divided court. This is the case that has been knocking around the Western District of Washington and the U.S. Court of Appeals for the 9th Circuit for many years, so long that Kennedy realized belatedly that he had participated in a phase of it while he was on the 9th Circuit, before he joined the Supreme Court in early 1988.

The Supreme Court was unusually transparent in its explanation for the late recusal, with Clerk of the Court Scott Harris telling the parties, in a letter released by the court, that “the ordinary conflict check conducted in Justice Kennedy’s chambers inadvertently failed to find this conflict.”

The tie vote affirms the 9th Circuit’s 2016 decision (amended in 2017) holding that certain Indian treaties require Washington state to replace culverts under state roads that restrict the passage of salmon.

With opinions and bar admissions completed, Marshal Pamela Talkin announces that the court will return to the bench this Thursday. The court has 21 argued cases remaining.

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