A “view” from the courtroom: Any coffee or doughnuts here?

A “view” from the courtroom: Any coffee or doughnuts here?There are some 40,000 job classifications in the United States (a figure used by Justice Stephen Breyer today). Under the Fair Labor Standards Act of 1938, many are eligible for overtime pay. Many others are expressly exempt, either under the statute or under Department of Labor regulations. Of all those jobs, only one has come […]

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A “view” from the courtroom: Any coffee or doughnuts here?

There are some 40,000 job classifications in the United States (a figure used by Justice Stephen Breyer today). Under the Fair Labor Standards Act of 1938, many are eligible for overtime pay. Many others are expressly exempt, either under the statute or under Department of Labor regulations.

Of all those jobs, only one has come under scrutiny in the Supreme Court twice in the last three terms over whether it is exempt from overtime pay — service advisor in an automobile dealership. In Encino Motorcars LLC v. Navarro, the justices will once again attempt to answer whether the employee who greets you in the dealership service department is eligible for overtime.

Of course, many of the jobs of the new economy would mystify Americans of 1938 — computer systems analyst, database security administrator, desktop publisher, ride-hailing driver and virtual assistant. These are all from the Labor Department’s Occupational Outlook Handbook, which still lists thousands of old-economy jobs and tends to toss a lot of newer ones into broader, traditional categories.

Before we get to the Encino Motorcars argument, there is a special job classification being used in the courtroom today — sign-language interpreter for the deaf. For at least the second time in two years, the court is swearing in several members of the Deaf and Hard of Hearing Bar Association, and it has permitted two sign-language interpreters to sign the court’s two arguments this morning. In addition, as it did when I wrote about a previous visit of the bar group in 2016, the court is allowing Communication Access Realtime Translation, or CART. Several of the bar-group members have brought their smartphones or tablets into the bar section to follow the arguments on screen. (It’s a special secure wi-fi system active only for occasions such as this.)

Paul D. Clement for petitioner (note, deaf lawyer in foreground using handheld device to follow argument) (Art Lien)

Once new bar members have been sworn in, Paul Clement steps to the lectern for Encino Motorcars, as he did in 2016.

In the first go-around, the court held that a 2011 interpretation of the overtime-pay provision of the FSLA had been issued without “reasoned explanation” and that a lower court had to construe the case without placing weight on the department’s interpretation.

As I wrote here when the opinion came down in June 2016, the first iteration of the case was “a bit of an eye-opener” about how the friendly service advisor is “often a commissioned salesperson charged with trying to upsell you on certain parts and services.”

Today, Clement says, “Service advisors are plainly salespeople, and what they sell and what they are primarily engaged in is the servicing of automobiles.”

Thus, the nation’s 100,000 service advisors are covered under a 1966 amendment to the FSLA that made any salesman, partsman or mechanic exempt from overtime pay, he argues.

In response to a question from Justice Ruth Bader Ginsburg, Clement points out that although there are other jobs at the typical dealership that are not exempt, there is at least one other example of a job considered a separate category but still treated as part of one of the exempt categories.

“The example would be automobile body repairmen,” Clement says, which the Labor Department has always treated as exempt “just like mechanics in the repair shop.’

Justice Elena Kagan engages Clement at some length, challenging him on the repairman comparison.

“It does seem as though, for all the arguments that you do have, that one cuts against you, that, you know, just the ordinary meaning of what it means to be engaged in servicing automobiles is to be repairing, maintaining, fixing cars,” Kagan says, suggesting that service advisors don’t do that.

“I’d love to talk to you about some of the other arguments you seem to like better, but let me try to push back a little bit on this one,” Clement says, noting that service can have a broader meaning of providing the service. His argument is bolstered, he says, by Congress’ inclusion of “partsman” in the statute, because partsmen requisition, order and stock parts but don’t get under the hood and “turn the wrenches” on vehicles.

Kagan presses a hypothetical involving seamstresses, and after some back and forth, Clement tries to suggest that Kagan had designed a lot of hypotheticals “and you probably gave me one of the best ones.”

“Now you’re daring me,” Kagan says, to laughter in the courtroom.

James Feldman of the Supreme Court Clinic at the University of Pennsylvania Law School steps to the lectern on behalf of a group of service advisors at Encino Motorcars, a Mercedes-Benz dealership. Stephanos Bibas, who argued on behalf of the advisors in 2016, is now on the U.S. Court of Appeals for the 3rd Circuit.

Feldman’s brief says the advisors are required to work from 7:00 a.m. to 6:00 p.m. at least five days a week, for a weekly minimum of 55 hours.

“The clearest reason why service advisors don’t come within that exemption is they don’t service automobiles,” Feldman says. “You don’t maintain or repair a car, in the way people would ordinarily speak, with a pad or a clipboard and a pencil or a telephone, which are the primary tools that service advisors use.”

Chief Justice John Roberts, suggesting that he’s spent his share of time at the service department, challenges Feldman.

“They do look under the hood sometimes, right?” Roberts says. “You bring the car up, you know, ‘it’s making this noise,’ they go out and at least listen to the noise, and sometimes they can say right away: ‘Oh, that’s probably this.’”

“I don’t think so,” Feldman responds. “They may make a guess as to what’s wrong and … say, well, it might be the distributor cap. But it’s up to the mechanic to actually figure out what’s wrong, not the service advisor.”

Justice Anthony Kennedy asks Feldman about a service advisor who meets a customer in the morning and says, “I’m a service advisor. I’m here to supervise and to plan the servicing of your automobile. Is that correct for him to say?”

Feldman says no. The advisors don’t supervise the mechanics, but serve a “communications function.” No one today openly discusses the advisors’ potential profit-increasing function.

Kennedy suggests that if an advisor is arranging for service, “it seems to me he’s engaged in servicing the automobile.”

Roberts suggests that the service advisor is important to long-term customer relationships.

“It’s sort of common understanding if you, over several years, dropped your car off whenever you’re supposed to or whenever it’s broken, and you talk to Fred about getting it fixed, and — and somebody comes to you later and says something — I’ve got a problem with my car — you would say, ‘my service guy is Fred, go see him.’”

Kagan has a question about a voice that is missing from today’s argument.

“Mr. Feldman, the solicitor general is not here in a case in which one would expect the government to be here. Do you know whether there’s any activity taking place in the Department of Labor with respect to this issue?”

Feldman says he doesn’t. In his rebuttal time, Clement responds by pointing to Footnote 9 of his reply brief, which says that the department’s Wage and Hour Division issued a bulletin in early January announcing it would suspend any enforcement actions against dealerships pending the outcome of this case.

(In a sentence that only the executive branch could write, the bulletin says, “Until further notice, WHD will not assert that service advisors who are employed by a nonmanufacturing establishment primarily engaged in the business of selling automobiles, trucks, or farm implements to ultimate purchasers do not meet the overtime pay exemption under [the statute].”)

The argument will continue with discussion of the many dealership jobs that are covered by overtime — financing salespeople, lube technicians, car jockeys, dispatchers, secretaries.

This case will likely be in the shop for at least two or three months. If you need to check on the progress, just call the court’s service department and ask for Fred.

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A “view” from the courtroom: Vehicle problems at the Supreme Court

A “view” from the courtroom: Vehicle problems at the Supreme CourtTuesday is another theme day at the Supreme Court, following Monday’s pair of original docket cases involving water disputes among states. Today’s theme is the Fourth Amendment and some unusual fact patterns in two cases involving vehicles, both of which have elements that any driver might identify with. We’ll cover standard car rental agreements, unauthorized […]

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A “view” from the courtroom: Vehicle problems at the Supreme Court

Tuesday is another theme day at the Supreme Court, following Monday’s pair of original docket cases involving water disputes among states.

Today’s theme is the Fourth Amendment and some unusual fact patterns in two cases involving vehicles, both of which have elements that any driver might identify with. We’ll cover standard car rental agreements, unauthorized housing sublets, Rodin’s “The Thinker,” Jay Leno’s garage, and the socioeconomic differences between built-in garages and carports.

Byrd v. United States is up first, about a man named Terrence Byrd who drove Latasha Reed, a woman described in court papers as his fiancée (there seems to be some dispute about their status), to a Budget rental car facility in Wayne, N.J., to rent a car. Byrd, given his criminal record, perhaps had reason to believe he would not be able to rent the car by himself or be added as an authorized driver on Reed’s contract.

Once Reed got the rental Ford Fusion, she turned it over to Byrd, and he took off on a trip. In Pennsylvania, he was pulled over by the state police after an officer found him to be driving a rental car in a suspicious manner. This included driving with his hands in the “10-and-2” position and lane misuse while passing other vehicles. The police stopped Byrd, and long story short, after determining that he was not an authorized driver of the rental car, searched the vehicle on that basis.

In the trunk, the police found body armor and 49 bricks of heroin. Byrd ended up entering a conditional guilty plea to drug possession with intent to distribute, and other charges. In this appeal he challenges the theory that his absence from the rental agreement gave police the right to search the car without his consent.

Robert Loeb is up first to defend Byrd, and the justices pepper him with questions and hypotheticals about the rental company’s authority over the car.

After some back and forth about whether Budget could give the police permission to search the car (which Loeb concedes that the company may), Justice Samuel Alito has a different scenario in mind.

“What about this,” he says. “A homeowner is going away for a long weekend, arranges with a teenager in the neighborhood to come in and walk and feed the cat and spend quality time with the cat, but says under no circumstances may you bring anybody else into the house.”

“The teenager says okay, fine, and then goes ahead and gives the keys to a friend who uses the house to sell drugs, and the police come in and they conduct a search. Can that trespasser claim that his Fourth Amendment rights were violated?”

Loeb says the court has carved out an exception to a Fourth Amendment right for a criminal trespasser.

When Eric Feigin, an assistant to the U.S. solicitor general defending the search, takes to the lectern, he insists that because she violated Budget’s rental agreement, Reed had no authority to give Byrd permission to drive the car, and thus Byrd had no legitimate expectation of privacy in the trunk.

“Well, but this is probably not the only time it’s ever happened,” Chief Justice John Roberts says to laughter in the courtroom, referring to those who have allowed unauthorized drivers behind the wheel of their rental cars.

“I think the understanding is, well, you’re probably going to have trouble with insurance and all if so and so gets into an accident,” Roberts continues. “But at least the argument on the other side is that it wasn’t unlawful for [Byrd] to be driving.  … It may have been a breach of contract by Reed, I guess, but not necessarily anything wrongful on [Byrd’s] part.”

Justice Sonia Sotomayor goes back to the police’s initial reasons for stopping Byrd, saying she fears a victory for the government here will give the police broad authority to stop anyone in a rental car.

“The police here said we stopped him because he was driving a rental car,” Sotomayor said. “He was doing something totally illegal. Every driving school teaches you to put your hands at a 10 to 2 angle, and they found that suspicious.”

More laughter.

In the second case, Collins v. Virginia, the question is whether the Fourth Amendment’s “automobile exception” permits a police officer, uninvited and without a warrant, to enter private property, approach a house and search a vehicle parked a few feet from the house, in what Fourth Amendment cases refer to as the curtilage.

The exception is to the general requirement for a warrant to search a house. The police need only probable cause to search a vehicle.

The vehicle in this case is an orange and black Suzuki motorcycle with a stretched-out rear wheel (a modification for drag racing) belonging to (or at least in the possession of) Ryan Austin Collins.

That motorcycle (and its driver) had eluded a police chase, but officers had evidence that led them to a home where they found it on the curtilage of the house under a white cover, or tarp. The justices and lawyers today repeatedly referred to the cover as a tarp, which will annoy the American Motorcyclist Association. The group filed an amicus brief in support of Collins that says it is wrong to refer to motorcycle covers as tarps and that such covers serve many lawful purposes. The brief also appears to be the only one in the case to quote Robert M. Pirsig’s 1974 classic, “Zen and the Art of Motorcycle Maintenance.”

Long story short again, Collins was convicted of receiving stolen property in Virginia’s state courts, which rejected his efforts to suppress the police’s approach of the motorcycle on the curtilage of the home and the moving of the tarp — I mean cover — to get the license plate and vehicle identification numbers.

The hypotheticals start early during the argument, with Justice Stephen Breyer raising one he calls “a weird hypothetical for illustration.” Why he thinks this one is any weirder than his others is a matter for debate. The backdrop question is when exigent circumstance exist for police to search a house without a warrant, such as when they see drugs in plain view that might be easily disposed of if they leave to get one.

Here’s the weird hypo.

“The mad art burglar has just stolen ‘The Thinker,’ Rodin’s ‘Thinker,’ from the local museum, Breyer says. “It weighs 2,000 pounds. And with his confederates, he’s put it in his new glass house. And the policeman stopping on the sidewalk looks in the window and sees: My God, there it is, the thing he’s just stolen. I thought the law is that that policeman cannot go into the house until he gets a warrant.”

Trevor Cox, the acting solicitor general of Virginia defending the search, agrees so far.

Breyer then discusses situations when the police would have exigent circumstances, such as if marijuana smoke was wafting from the house and they could see a person inside. This leads to a lengthy debate about whether exigent circumstances exist for a search of the motorcycle, even though all seem to agree that is not the legal question before the justices.

A discussion over whether vehicles in garages might be subject to warrantless searches leads to a concern from Justice Ruth Bader Ginsburg about a certain home-accessory divide in America.

“You’re making a distinction between people who can buy houses with garages and people who are less well-heeled and only have a porch or a patio for the car instead of a garage,” Ginsburg tells Cox. “So that distinction seems to me really troublesome, between garage and carport.”

The transcript doesn’t record it, but I’m sure I heard Alito ask something along the lines of “What about detached garages” before letting the argument move on amid several people talking at once.

Cox says, “I guess what I would say is that the Fourth Amendment protects the same quality of privacy, but maybe not the same quantity of privacy for everyone.”

Roberts questions Cox about how significant the mobility of vehicles is to his argument in favor of the automobile exception.

“I mean, if you have an automobile in the house, which is not, you know, Jay Leno’s house, right, where he’s got dozens of rare cars, or the Porsche in ‘Ferris Bueller,’ he says. “Are you saying that you … can just go in because they got it in there somehow and they can get it out?”

(I’m sorry to report to the chief that it was a 1961 Ferrari 250 GT California owned by Cameron’s father in the 1986 classic “Ferris Bueller’s Day Off.” And internet accounts say the filmmakers used three replicas, so no genuine 1961 Ferrari backed out through the glass window of Cameron’s Modernist house near the end of the film.)

Cox tells the chief that yes, he would draw the line at the house in that circumstance and not the curtilage.

Speaking in his rebuttal time, Matthew Fitzgerald, the lawyer for Collins, says the automobile exception was “created based on exigent circumstances in 1925,” but now “is literally knocking at the door of the house.”

“We submit that the clear, bright-line rule for officers,” Fitzgerald concludes, “which is that when they go to a known address to look for contraband, even readily-mobile contraband, they bring a warrant with them, should apply when they are going to a known address to look for a vehicle as well.”

And with that, two exhilarating hours at the Supreme Court’s Fourth Amendment vehicle day are over.

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A “view” from the courtroom: Setting the table for a major ruling

A “view” from the courtroom: Setting the table for a major rulingIt’s the biggest case of the term, Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, and the press is asked to arrive extra early at the Supreme Court this morning. We also are led up to the courtroom earlier than usual, about 9:15 a.m. It’s so early that most of the public gallery has not […]

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A “view” from the courtroom: Setting the table for a major ruling

It’s the biggest case of the term, Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, and the press is asked to arrive extra early at the Supreme Court this morning. We also are led up to the courtroom earlier than usual, about 9:15 a.m.

It’s so early that most of the public gallery has not yet filled, though the crowd is coming. Jack Phillips, the owner of Masterpiece Cakeshop, is seated in the third row of the middle section of the public gallery.

Charlie Craig and David Mullins, the gay couple who were denied a custom wedding cake by Phillips in 2012, are not yet in the courtroom, but we saw them on the ground floor. Soon they will enter with Craig’s mother, Deborah Munn, and take seats in the third row, but in a section across the aisle from Phillips and his party. Munn accompanied Craig and Mullins when they visited Masterpiece Cakeshop seeking a cake for their wedding reception.

Kristen Waggoner, who will argue the case for Phillips, enters the courtroom, accompanied by Michael Farris, the president, CEO and general counsel of Alliance Defending Freedom. Jordan Lorence, a senior counsel with ADF, is seated in the public gallery.

The American Civil Liberties Union, which represents Craig and Mullins, has a strong presence here today, with legal director David Cole to argue part of the case, ACLU lawyers such as James Esseks and Louise Melling in the bar section, and retired legal director Steven Shapiro in the public gallery.

U.S. Solicitor General Noel Francisco takes a seat at the same table as Waggoner, while Cole is sharing his argument with Colorado Solicitor General Frederick Yarger.

Sen. Claire McCaskill, Democrat of Missouri, arrives and takes a place in the public gallery along with her daughter Lily, whom she identifies on Twitter as a second-year law student.

The justices’ aides bring the more than 100 briefs to their bosses’ place at the bench. Some have to use big magazine holders to carry all the briefs, while others are able to balance the whole stack in one fell swoop. But all break the briefs into smaller piles, lest their justices be hidden behind a giant stack of color-coded booklets.

With only one big case today, one wonders whether Chief Justice John Roberts will announce some extra argument time, as he did last week at the outset of a Fourth Amendment case, Carpenter v. United States.

The justices take the bench, and as usual there are bar admissions. No governors or other prominent new members today, though.

Roberts then calls the Masterpiece Cakeshop case. He offers no suggestion of extra time, but the argument will end up growing anyway (at times a bit out of control).

Amy Howe has the main report for this blog, recounting a court sharply divided, with the justices constantly fighting for the floor.

Justice Elena Kagan presses Waggoner on where to draw the line between creative professionals engaged in protected speech. Are chefs, jewelers, hairstylists or makeup artists engaged in speech?

Waggoner says no to those.

“The makeup artist?” asks Kagan. “It’s called an artist. It’s the makeup artist.” The crowd laughs.

The argument continues in a somewhat mouth-watering vein at times.

“When have we ever given protection to a food?” Justice Sonia Sotomayor asks Waggoner. “The primary purpose of a food of any kind is to be eaten.”

Addressing Fransciso, Justice Samuel Alito references earlier mentions of divine culinary creations and says, “General, my colleagues, I think, go to more elite restaurants than I do.”

He adds that he dreams of one day going to a one-tenth to two-star Michelin restaurant.

Justice Neil Gorsuch says that “I have yet to have a wedding cake that I would say tastes great.”

We can’t see Phillips’ expression at that moment but imagine he is dismayed.

Kagan is perhaps responsible for the extension of the argument, when she asks Waggoner a question during Waggoner’s last five minutes.

“Sorry, very quickly, I know your light is on and I’m sure you’ll be given a little bit of an adjustment,” Kagan says. Turning to the chief justice, she adds, “Is that okay?”

Roberts nods his head from side to side in a noncommittal way, but it now seems inevitable that the argument will expand. And when Waggoner reaches the end of her presentation, the chief justice says she will be afforded her full rebuttal time.

When that time comes along later in the argument, Sotomayor is immediately ready to use it up with more questions. Finally, Waggoner makes some of her rebuttal points, and Sotomayor has still more questions.

When Waggoner’s red light comes on, Roberts says, “a brief last word, Ms. Waggoner.” She gets in one or two final points, uninterrupted, and the case is submitted.

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A “view” from the courtroom: Must be in the front row

A “view” from the courtroom: Must be in the front rowAs we enter the courtroom for today’s argument in Christie v. National Collegiate Athletic Association, we are hopeful we can identify where Gov. Chris Christie of New Jersey is sitting so we can analyze his reactions to the case about sports betting. Often the lead petitioner is seated on the far side of the courtroom, […]

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A “view” from the courtroom: Must be in the front row

As we enter the courtroom for today’s argument in Christie v. National Collegiate Athletic Association, we are hopeful we can identify where Gov. Chris Christie of New Jersey is sitting so we can analyze his reactions to the case about sports betting.

Often the lead petitioner is seated on the far side of the courtroom, away from the press section. But not today. The governor is seated in the front row of the bar section, in the seat that abuts the first press row

Gov. Chris Christie is admitted to the Supreme Court bar prior to arguments in Christie v. NCAA. (Art Lien)

We politely muscle into Christie’s conversation with his neighbors to inquire whether he is a member of the Supreme Court bar.

“I will be in a few minutes,” he tells us. It seems that Theodore Olson, the former U.S. solicitor general under President George W. Bush, has employed one of the inside tricks to get some extra courtroom seats.

Meanwhile, Christie yells (not too loudly) to some fellow New Jerseyans across the courtroom to say that one of them has “the Uecker seats.” The reference is to onetime Major League Baseball player, broadcaster and commercial actor Bob Uecker, whose tagline was “I must be in the front row” when actually he was relegated to the nosebleed section.

Christie, though, is definitely in the front row.

In the last row of the bar section, New Jersey state Sen. Raymond Lesniak, a Democrat representing cities such as Union and Elizabeth, grabs us to claim some credit for his role in the case. Lesniak sponsored the 2014 measure that repealed the state’s laws against sports betting, which the U.S. Court of Appeals for the 3rd Circuit held violated the federal Professional and Amateur Sports Protection Act.

Also sprinkled throughout the courtroom today are several proponents of legalized sports betting, including Sara Slane, the senior vice president of the American Gaming Association, which represents casinos; and Daniel Wallach, a Fort Lauderdale, Fla., lawyer and expert on gaming law and sports law.

Both of them participated in a briefing that gaming industry interests held last week in Washington. Their optimistic view was that PASPA was likely to go down and that legalized and regulated sports betting was ready to explode across the country.

“This is the Thrilla in Manilla,” Wallach said at that briefing, referring to today’s case.

If this is the championship bout in this long-running case, the boxers have been going at it for years. Olson represents New Jersey officials, and Paul Clement, another former George W. Bush solicitor general, represents the NCAA, Major League Baseball, the National Hockey League, the National Football League and the National Basketball Association.

In their corners, or at their counsel tables, Olson has his longtime partner at Gibson Dunn, Matthew McGill. At Clement’s side is Jeffrey Mishkin of Skadden Arps. (Clement is with Kirkland & Ellis.)

Deputy Solicitor General Jeffrey Wall will also argue in support of Clement’s side and PASPA today.

Missing from the courtroom are any of the commissioners of the sports leagues, who have passed up the opportunity to be here. (The pro-gaming interests are more than happy to point out that the traditional bedrock stance of the sports leagues against legalized sports betting appears to be eroding ever so slightly, with the NHL and NFL putting teams in Las Vegas and NBA Commissioner Daniel Silver calling for legalized and closely regulated sports wagering.)

Christie, who will step down as governor next month after eight years in office, has more than enough charisma to fill the courtroom. When the justices take the bench at 10 a.m., Chief Justice John Roberts recognizes Olson to move the admission of Christie and three other New Jersey lawyers to the Supreme Court bar.

After Christie and multiple other new bar members are sworn in, the governor sits still in his chair for an hour and lets the arguments about the 10th Amendment, commandeering, illegal sports betting and other matters unfold.

Only when he gets outside to the press cameras can the governor be himself again, overshadowing Olson to some degree and parrying with reporters over some of the fine points, but also addressing concerns such as the potential mob influence on sports betting. “It’s not like we don’t know about organized crime in New Jersey,” Christie says, adding that legal forms of betting are easier to control than illegal forms.

And soon, the governor and his entourage get into their motorcade and are off.

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A “view” from the courtroom: A big windup on partisan gerrymandering

A “view” from the courtroom: A big windup on partisan gerrymanderingThere is some extra wattage here this morning for arguments in one of the marquee cases of the new term, Gill v. Whitford, about the constitutionality of partisan gerrymandering. Former California Gov. Arnold Schwarzenegger, a Republican who has also appeared in a few movies, is here today, seated in the second row of the public […]

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A “view” from the courtroom: A big windup on partisan gerrymandering

There is some extra wattage here this morning for arguments in one of the marquee cases of the new term, Gill v. Whitford, about the constitutionality of partisan gerrymandering.

Former California Gov. Arnold Schwarzenegger, a Republican who has also appeared in a few movies, is here today, seated in the second row of the public gallery. He has become active in the effort to eliminate political gerrymandering, employing several of his popular catchphrases.

He has a Crowdpac website called Terminate Gerrymandering, and he will repeat several times today before the media and a crowd outside the court, “It’s time to say ‘hasta la vista’ to gerrymandering.”

Steve Case, Arnold Schwarzenegger and William Whitford seated in courtroom during argument (Art Lien)

In the courtroom this morning, before argument has begun, Schwarzenegger is in conversation with William Whitford, a retired law professor from the University of Wisconsin at Madison who is the lead plaintiff in the challenge to Wisconsin’s 2011 legislative map. A federal district court invalidated the map last year as a partisan gerrymander, and the case is here on direct appeal.

Whitford is among several individuals who will be singled out from the bench this morning for one point or another.

In front of Whitford is Sen. Tammy Baldwin, Democrat of Wisconsin. Whitford will tell me later that he once taught Baldwin at his law school, and that before the argument he considered quizzing his former student about some of the fine points of the case.

Not far away is Steve Case, the co-founder and former CEO of AOL, who now runs a Washington venture capital firm called Revolution LLC. Case espouses various ideas on business entrepreneurship and citizenship in speeches and books, but it is not immediately clear if a particular interest in partisan gerrymandering has brought him here today.

Among those present from the other side of the case, defending Wisconsin’s map, are state Attorney General Brad Schimel, a Republican, and state Sen. Scott Fitzgerald, a Republican who is majority leader of his chamber.

The justices take the bench at 10 a.m. and move immediately to bar admissions. Chief Justice John Roberts recognizes Paul Smith, who will argue the case for the challengers to the map, to move the admission of Nicholas Stephanopoulos of the bar of New York.

Stephanopolous, seated in the front row of the bar section, is a law professor at the University of Chicago who is the co-author of a law review article that is integral to the case, “Partisan Gerrymandering and the Efficiency Gap.”

The other co-author, Eric McGhee, a political scientist with the Public Policy Institute of California, is apparently also here today. He has posted his guest ticket to the bar admissions ceremony on his Twitter account. Such a ticket guarantees a spot for that morning’s arguments, as well. That is a good thing for McGhee, because not only is he acutely interested in the case, he will be invoked by name from the bench a little later.

When it comes to the argument, Amy Howe has the main account. Most would agree that the hour more than lives up to its billing.

During that hour, Schwarzenegger will listen raptly, laughing along with others when Justice Anthony Kennedy makes a quasi-humorous reference to standing, and smiling when Justice Stephen Breyer tells Wisconsin Solicitor General Misha Tseytlin, “So let me spend exactly 30 seconds” formulating an observation and a question about “all that social science stuff and the computer stuff” involving redistricting.

After Breyer goes on for well over 30 seconds, the chief justice peers up at the clock that faces the bench, then turns and whispers to Kennedy. When Breyer finally does wrap up his four-pronged question, Roberts sends him a note, which elicits a smile from Breyer and a return note.

To digress for just 30 seconds, today’s bench notes remind me that I’ve been looking for an opportunity to register my thoroughly anecdotal, unscientific observation that note-passing among the justices seems to be a fading art.

This is based chiefly on the collection of bench memos kept by the late Justice Harry Blackmun, which suggest that in Blackmun’s early years in the 1970s, the justices were passing notes as often as a class of fifth-graders.

The most famous of those, of course, was highlighted by Linda Greenhouse in her book “Becoming Justice Blackmun.” It was a note passed to Justice Potter Stewart by one of his law clerks (but kept by Blackmun and added to his collection). It came on an early October day in 1973 that was particularly momentous for U.S. politics and the Major League Baseball playoffs. The note read:

V.P. Agnew Just
Resigned!!

Mets 2
Reds 0

Stewart was a fan of the Reds, who would lose that National League Championship Series to the Mets. And wouldn’t it be nice to have playoff baseball going on when the justices are on the bench?

Back to October 2017, Justice Samuel Alito questions Smith about the scholarly article promoting the efficiency gap as, in Alito’s words, the “Rosetta stone” for formulating a constitutional standard to weigh partisan gerrymandering.

Justice Alito refers to McGhee as the author of the paper, even though Stephanopoulos has equal billing as a co-author and is sitting just 10 or 12 feet away from the bench.

Alito discusses the paper at length, lays out a question raised by one of the district judges below about how to calculate the efficiency gap, and says that McGhee’s answer is, “Well, I have an answer to this, and I have a forthcoming paper and I’ll answer it in the forthcoming paper.”

After this long windup, Smith says, “Is there a question there, your honor?” He says it not in an evasive way, but with a smile. Even the chief justice, who has had some tense exchanges with Smith in past First Amendment cases, smiles at this.

Alito, with a slight smile himself, says, “Yes, there is a question there. There’s about 10 of them.”

The argument will go on, with more than one justice referring to the social science surrounding gerrymandering as “gobbledygook.”

Justice Neil Gorsuch will tell Smith that the search for a standard for too much partisan gerrymandering “reminds me a little bit of my steak rub.”

“I like some turmeric, I like a few other little ingredients, but I’m not going to tell you how much of each,” Gorsuch says. “And so what’s this court supposed to do, a pinch of this, a pinch of that?”

Toward the end, though, the argument takes a loftier turn. The chief justice tells Smith that he is worried that if this partisan gerrymandering claim is allowed to proceed, “there will naturally be a lot of these claims around the country.”

“And every one of them will come here for a decision on the merits,” says Roberts, who questions whether the average person will understand that the court is deciding such cases based on a complex efficiency-gap calculations.

“And the intelligent man on the street is going to say that’s a bunch of baloney,” Roberts says. “It must be because the Supreme Court preferred the Democrats over the Republicans. … And that is going to cause very serious harm to the status and integrity of the decisions of this court in the eyes of the country.”

Smith replies that the nation is on the cusp of a “more serious problem as gerrymandering becomes more sophisticated with computers and data analytics and an electorate that’s very polarized and more predictable than it’s ever been before.”

“If you let this go,” Smith continues, “if you say … we’re not going to have a judicial remedy for this problem, in 2020, you’re going to have a festival of copycat gerrymandering the likes of which this country has never seen.”

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A “view” from the courtroom: A day for drama on the bench

A “view” from the courtroom: A day for drama on the benchEven in a Supreme Court term that many would agree is the first non-blockbuster in a good five years, the justices have managed to build up some suspense for their season finale this morning. As we await the justices, Lyle Denniston has joined us in the press section. Normally on opinion days, Denniston stays down […]

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A “view” from the courtroom: A day for drama on the bench

Even in a Supreme Court term that many would agree is the first non-blockbuster in a good five years, the justices have managed to build up some suspense for their season finale this morning.

As we await the justices, Lyle Denniston has joined us in the press section. Normally on opinion days, Denniston stays down in the press room. But he announced last week that he is retiring — once and for all — from covering the court after nearly 60 years working for such outlets as The Wall Street Journal, the Washington Star, the Baltimore Sun, the Boston Globe, SCOTUSblog, the Constitution Daily blog and his own law blog.

Lyle’s wife, Pamela Houghton-Denniston, is here today for the occasion. She is member of the Supreme Court Bar and is sitting adjacent to her husband, but in that section.

Justice Sotomayor dissents in Trinity Lutheran (Art Lien)

Also in the press section in the courtroom today are two sketch artists — Art Lien of NBC News (and SCOTUSblog) and Bill Hennessy of CNN. We mention this only because we’re afraid that one or both might soon be called away from the court regularly to sketch the White House press briefing, as Hennessy was last week when the briefing was closed to cameras.

Meanwhile, across the room in the VIP section, Virginia Thomas, Justice Clarence Thomas’s wife, arrives. She is soon followed by Jane Roberts, the wife of Chief Justice John Roberts, and their two children, Josie and Jack. Joanna Breyer, the wife of Justice Stephen Breyer, also files into the section. But Mary Kennedy, the wife of Justice Anthony Kennedy, is a no-show, even though she is no stranger to the courtroom, especially on the last day of the term.

This is probably one more indication that no retirement announcement is coming from Justice Kennedy this morning. (And we have been a bit dubious that any such announcement would come from the bench. We can’t think of a retiring justice in recent decades who first disclosed his or her retirement in the courtroom.)

The justices take the bench about a minute or two late this morning. The chief justice announces that Thomas has the opinion for the court in Davila v. Davis. Thomas briefly describes the background of the case before using a favorite phrasing of his to announce the holding: “In an opinion filed with the clerk today …” This formulation, which makes it seem as though you are witnessing the law change at that very moment, was employed by a number of past justices but has fallen out of favor with Thomas’ current colleagues.

Thomas says that because a prisoner does not have a constitutional right to counsel in state postconviction proceedings, ineffective assistance in those proceedings does not qualify as cause to excuse a procedural default. The decision is 5-4 along the court’s conservative-liberal divide.

Kennedy is up next with the opinion in California Public Employees’ Retirement System v. ANZ Securities Inc. As soon as Kennedy mentions the word “retirement” in the name of California’s largest public-pension fund, we can practically hear the jokes emanating from the press room about Kennedy’s discussing retirement from the bench.

The decision is another 5-4 one along the conservative-liberal divide, with the majority holding that CalPERS’ untimely filing of its complaint more than three years after the relevant securities offering is ground for dismissal.

Kennedy, who had been leaning forward to inspect the pages of his summary as Thomas spoke and remained there while he delivered it, now leans back in his chair and seems relaxed.

Roberts announces that he has the opinion in Trinity Lutheran Church of Columbia Inc. v. Comer, except that he has only a judgment of the court with respect to Footnote 3, he says. We can’t wait to read this footnote, but it will remain a mystery as the chief justice recounts the story behind a case that was granted cert way back in January 2016.

He discusses how the “pea gravel” of Trinity Lutheran’s playground that can be “unforgiving” when youngsters fall from the slides, jungle gyms and monkey bars. The church sued after it was denied a grant from Missouri’s Scrap Tire Program based on language in that state’s constitution barring aid to churches.

Roberts summarizes a fair amount of his opinion, concluding with his mention of an 1829 speech by a Maryland legislator who urged that state’s assembly to adopt a bill that would end the state’s disqualification of Jews from public office, which spoke of “persecution” and “an odious exclusion.”

“The Missouri Department of Natural Resources has not subjected anyone to chains or torture on account of religion,” Roberts says. “And the result of the state’s policy is nothing so dramatic as the denial of political office. The consequence is, in all likelihood, a few extra scraped knees. But the exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand.”

Jordan Lorence of the Alliance Defending Freedom, which represented Trinity Lutheran, is seated near the front of the thinly populated bar section again today, and he listens intently to the summary.

The chief justice explains the somewhat complicated lineup that includes concurrences by Thomas and Justice Neil Gorsuch, a concurrence in the judgment by Breyer, and a dissent by Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg.

Sotomayor reads from the bench at some length from her 27-page dissent.

“This court has never before, in its 200-year history, allowed a state to turn over taxpayer funds to a house of worship,” she says. “This case is remarkable.”

There are now three merits cases still up in the air. Roberts explains that in one, Hernandez v. Mesa, about the cross-border shooting of a Mexican teenager by a U.S. Border Patrol agent, a per curiam opinion has been issued and that the decision of the court below has been vacated and the case remanded. He explains that Thomas has filed a dissent, as has Breyer, joined by Ginsburg. But we otherwise don’t know in the courtroom what is really going on there.

Next, the chief justice announces that Jennings v. Rodriguez and Sessions v. Dimaya, both dealing with immigration, “are restored to the calendar for reargument.” Those are likely 4-4 ties in cases heard before Gorsuch joined the court.

The chief justice isn’t done. He has saved the announcement regarding the “travel ban” cases for one more dramatic moment in the courtroom.

He announces that the cert petitions in “Donald J. Trump versus International Refugee Assistance Project” and “Donald J. Trump versus Hawaii” are granted, and the government’s stay request is granted in part, with a partial concurrence and partial dissent by Thomas, Justice Samuel Alito, and Gorsuch. Again, there is a per curiam opinion that we don’t immediately have in hand.

Roberts then provides his traditional closing comments, thanking court employees for their outstanding work and dedication. He recognizes two who have retired in recent months: John Boulanger, an IT specialist with 25 years of service with the court, and Yvonne Rogers, a technician with 38 years’ experience.

The chief justice then turns towards the press section to recognize Denniston, citing not only his nearly 60 years of covering the Supreme Court but a career that began in 1948, covering the Otoe County Courthouse in Nebraska City, Neb. Denniston has covered Supreme Court terms that fill more than 200 volumes of the United States Reports, Roberts points out.

Every member of the court is looking Denniston’s way and smiling, including those who rarely if ever look toward the press section.

With that, Marshal Pamela Talkin bangs her gavel and announces that court is adjourned until October as the justices retreat through the curtains, the day’s drama at an end.

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A “view” from the courtroom: The metes and bounds of the term

A “view” from the courtroom: The metes and bounds of the termFridays are rare days for Supreme Court opinions, with the last one coming two years ago when the same-sex marriage ruling in Obergefell v. Hodges (and one other decision) was announced. But with nine cases left to decide on this second bonus opinion day of the term, it seems possible that the court is aiming […]

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A “view” from the courtroom: The metes and bounds of the term

Fridays are rare days for Supreme Court opinions, with the last one coming two years ago when the same-sex marriage ruling in Obergefell v. Hodges (and one other decision) was announced.

But with nine cases left to decide on this second bonus opinion day of the term, it seems possible that the court is aiming to finish its work by Monday. We’ll have our answer a little later.

The bar section is about as empty today as it was yesterday, with a handful of advocates present. Todd Gaziano of the Pacific Legal Foundation is here, awaiting a decision in Murr v. Wisconsin, a PLF case involving the takings clause. Jordan Lorence of the Alliance Defending Freedom is here, likely awaiting the decision in Trinity Lutheran Church of Columbia v. Comer. Arthur Spitzer, the legal director of the American Civil Liberties Union of Washington, D.C., is here, as he often is at the end of the term.

Justice Kennedy with opinion in Murr v. Wisconsin; Justices Alito and Thomas absent from bench (Art Lien)

Several members of the U.S. solicitor general’s office file in and take places at the counsel tables, while Noel Francisco, the president’s nominee for solicitor general who is serving in another Justice Department post pending his confirmation (thanks to this term’s decision in National Labor Relations Board v. SW General Inc.), takes a seat in the bar section. The public gallery contains a lot of young people today, but is not completely full.

Meanwhile, several of the justices’ law clerks have filled the vestibules on the south side of the courtroom.

After yesterday’s minor misstep, three marshal’s aides take their places behind the bench this morning at 10 a.m., before the justices’ arrival. When the court takes the bench, Justices Clarence Thomas and Samuel Alito are absent. It’s Thomas’ 69th birthday today, but we don’t think that’s the reason for his absence.

Chief Justice John Roberts announces that Justice Ruth Bader Ginsburg has the court’s opinion in Perry v. Merit Systems Protection Board.

This involves a U.S. Census Bureau employee who was dismissed for “spotty attendance,” she explains, and the legal question concerns the proper forum for an appeal of the merit board’s dismissal of a “mixed case” — one involving allegations that an adverse civil-service employment action was motivated by discrimination based on race, gender, age or disability.

Ginsburg’s opinion sides with federal district court review, rejecting the government’s argument that mixed claims be split between a district court and the U.S. Court of Appeals for the Federal Circuit.

Justice Neil Gorsuch has written a dissenting opinion, joined by Thomas. This was the first case heard by Gorsuch when he joined the court, and this is his first written dissent. He does not deliver it from the bench.

Justice Anthony Kennedy is next with the opinion in Murr v. Wisconsin, about a family’s challenge to municipal limits on its development of two parcels of property they own along the St. Croix river as a regulatory taking. (Authorities required the family to sell or build on the two lots as a single, combined property.)

This was one of the cases the court agreed to review while Justice Antonin Scalia was still alive, and the court carried it over to the current term. It was also argued on the first day of Gorsuch’s Senate confirmation hearing, when the attention of the press corps was focused on the Hart Senate Office Building.

What was already an important takings case took on a new perspective when, last fall, during one of many panel discussions in which legal experts preview the coming term, one such expert awoke us from a state of mental slumber by describing a footnote in the merits brief of the state of Wisconsin.

Wisconsin, in support of the idea that property lot lines are “creatures of state law,” reached back to English law to explain that landholdings were defined by “metes and bounds” — measurements and boundaries. Footnote 3 of the state’s brief then provided some further historical context:

In Medieval England, the ritual of “beating the bounds” was of particular importance to defining the boundaries of a parish, manor, or royal forest. … These “periodical surveys” preserved “ancient boundaries” by, among other methods, requiring young boys to beat a boundary mark “with peeled willow wands to impress its location on their memories.” … “[T]o preserve evidence of particular boundaries,” the “boys themselves” were sometimes whipped “on the spot” in exchange for a fee, “it being thought that the impression made on the memory was thus more likely to be lasting.” …. The testimony of boys—beaten during these ceremonies—was used to settle more than one boundary dispute.

Neither the oral argument nor Kennedy’s opinion delves into the practice of beating the bounds. But Kennedy does mention “metes and bounds,” and he observes that in considering the proper unit of property against which to assess the effect of the challenged governmental action, “courts should give substantial weight to the treatment of the land, in particular how it is bounded or divided, under state and local law.”

Kennedy says that because, among other reasons, the value of the combined lots required by the local regulations is likely greater than the separate lots, the Murrs have not suffered a compensable taking. The chief justice has filed a dissent, joined by Thomas and Alito. Thomas has filed a separate dissent. And Gorsuch, of course, did not participate.

Roberts says that he has the opinion in Lee v. United States, one of the court’s many immigration cases this term.

The chief justice begins with the personal story of Jae Lee, who emigrated from South Korea at age 13 in 1982, graduated from high school in New York City, then set out to Memphis, where he eventually opened the Mandarin Palace Chinese Restaurant. Lee, long classified as a lawful permanent resident, was not always that lawful, as “he also engaged in some illegal acts,” Roberts says.

Lee’s arrest on drug charges led to some particularly bad advice from his defense lawyer, who had advised him that he would not face deportation if he pleaded guilty to the offense.

“Lee soon learned that his attorney was dead wrong,” Roberts says from the bench. Lee had pleaded guilty to an aggravated felony under the Immigration and Nationality Act and was subject to mandatory deportation. This led to a motion to vacate the conviction and sentence based on the fact that Lee had been provided constitutionally ineffective assistance of counsel.

It seems during this description that the chief justice is sympathetic to Lee’s claim.

He emphasizes the theme that Lee received “very bad advice” from his lawyer and that as someone who had lived for 30 years in the United States, established two businesses, had never returned to South Korea since childhood, and was the sole family member who could care for his elderly parents, Lee would place “paramount importance” on avoiding deportation.

Indeed, Roberts gets around to explaining that even though the evidence against Lee was strong, and thus choosing to go to trial might offer him faint hope of avoiding deportation, “we cannot say it would be irrational for a defendant in Lee’s position to reject the plea offer in favor of trial.”

Thomas has filed a dissent joined but for one section by Alito. Gorsuch took no part.

With that, Roberts announces that “this court will next sit Monday morning at 10 o’clock. At that time we will announce all remaining opinions ready during this term of the court.”

Six cases remain. Whether they are all ready for announcement, or whether some are to be set for re-argument, is a question that should be answered on Monday.

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A “view” from the courtroom: The term’s first bonus day for opinions

A “view” from the courtroom: The term’s first bonus day for opinionsToday is the court’s first added day for opinions of the term, and it is coming much later than in recent terms, when opinion days were added in the second week of June. This morning, around 9:30, I have reflexively walked into the Public Information Office looking for the orders list. But there is no […]

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A “view” from the courtroom: The term’s first bonus day for opinions

Today is the court’s first added day for opinions of the term, and it is coming much later than in recent terms, when opinion days were added in the second week of June.

This morning, around 9:30, I have reflexively walked into the Public Information Office looking for the orders list. But there is no orders list on a day such as this.

In the courtroom, as is typical for the first added opinion day, the bar section is almost empty. About a dozen members of the Supreme Court Bar will show up, joined by Acting Solicitor General Jeffrey Wall and Deputy Solicitor General Edwin Kneedler. Deputy Solicitor General Michael Dreeben, who is no doubt busy with his temporary assignment with the special counsel’s office, is not here.

Usually, when the justices are prepared to take the bench, they are proceeded by several aides from the marshal’s office. Typically two, but more recently three, such aides emerge from the curtains and stand still for 10 or 15 seconds, a sign that the justices are about to appear. The aides, joined by a couple of more who emerge from the curtains, then help push in the justices’ chairs after Marshal Pamela Talkin delivers the traditional cry.

Today, the chime goes off to signal the start of the court session, and the marshal’s aides are not yet in place. Chief Justice John Roberts is the first one through the middle curtain opening, while the aides scramble in from the side openings. It’s nothing of significance in the great realm of the universe, but just an unscripted moment in an institution that is usually precise and tradition-bound.

The chief justice announces that Justice Elena Kagan has the opinion in Maslenjak v. United States. This case, about a Bosnian Serb woman who had come to the United States as a refugee and who was convicted of lying to the government when she sought citizenship, was the last argued for the term and sparked quite a lively argument.

Kagan explains that under the relevant federal criminal statute, the government must establish that the defendant’s illegal act played a role in her acquisition of citizenship. This holding rejects the government’s view that the statute requires only a violation in the course of procuring citizenship, regardless of whether the violation made a difference in the decision to grant an application.

She cites the “riddle” from her opinion about a statement that “John obtained that painting illegally, but his unlawful acts did not play any role in obtaining it,” except in her bench statement she substitutes Jane for John.

“You would not have a clue what the statement meant, and you would think it was some sort of riddle,” Kagan says.

She also makes a reference to the fact that under the government’s theory, a long-ago speeding violation could prove problematic. That was a theme raised several times at oral argument by Roberts, who was skeptical of the government and has now joined Kagan’s opinion.

Kagan announces a voting lineup that includes an opinion by Justice Neil Gorsuch, joined by Justice Clarence Thomas, concurring in part and concurring in the judgment, and an opinion concurring in the judgment by Justice Samuel Alito. Gorsuch’s written concurrence is his first of that variety.

Next up is Justice Stephen Breyer with a 6-2 opinion in Turner v. United States. This case involves a notorious murder of a woman in the District of Columbia in 1984, and whether certain evidence the government had withheld from the defense was “material” under Brady v. Maryland.

This was argued for the federal government by Dreeben, who had seemingly mastered every fact in this complex, multi-defendant case.

Breyer describes some of the agreed-upon facts of the attack on the victim, “which was pretty gruesome,” and goes into some of the details of the “group attack theory” being challenged by some of the defendants.

“It gives you a flavor for it,” he says. “You’d have to look at the record.”

But the withheld evidence is “too little, too weak, or too distant to undermine the group attack theory,” Breyer says.

Kagan has filed a dissent that is joined by Justice Ruth Bader Ginsburg, and Gorsuch did not participate.

Justice Anthony Kennedy has the last opinion on a day devoted to the criminal law. It’s in Weaver v. Massachusetts, about a defendant’s challenge to a decision to close the courtroom to the public during two days of jury selection.

We aren’t aware in the courtroom that the “bench opinion” being distributed once Kennedy starts reading spells the state as “Masssachusetts.” It is quickly corrected in the online version.

Kennedy explains the doctrines at issue: structural error and ineffective assistance of counsel. The defendant’s counsel at trial did not object to the courtroom closure during voir dire.

Kennedy’s opinion holds for the court that, among other principles, because the defendant has not shown a reasonable probability of a different outcome but for his counsel’s failure to object to the courtroom closing or that his counsel’s shortcomings led to an unfair trial, he is not entitled to a new trial.

Amid a somewhat complicated lineup in a 7-2 judgment, Gorsuch has joined Kennedy’s opinion, a concurring opinion by Thomas, and an opinion concurring in the judgment by Alito. Breyer has written a dissent, joined by Kagan.

With that, Roberts turns to Talkin, the marshal, who bangs her gavel and announces that court will reconvene Friday at 10 o’clock. We think the marshal’s aides will be in place for that.

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A “view” from the courtroom: A clash of laws

A “view” from the courtroom: A clash of lawsIt’s back to business for the court today after the excitement of last Thursday’s special session for the investiture of Justice Neil Gorsuch. Retired Justice John Paul Stevens, who was present for the investiture, is back in the courtroom this morning, taking a seat next to Reporter of Decisions Christine Fallon. Going into today, there […]

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A “view” from the courtroom: A clash of laws

It’s back to business for the court today after the excitement of last Thursday’s special session for the investiture of Justice Neil Gorsuch. Retired Justice John Paul Stevens, who was present for the investiture, is back in the courtroom this morning, taking a seat next to Reporter of Decisions Christine Fallon.

Going into today, there are 17 pending merits decisions, and some uncertainty about whether the court will add an additional opinion day or two this week. We’ll get an answer at the very end of today’s session.

All nine justices take the bench on time this morning, in contrast to the delayed start to the investiture, which may have been caused by the various pictures and other behind-the-scenes activities involving President Donald Trump and first lady Melania Trump.

On this day after Father’s Day, Chief Justice John Roberts seems to be still basking in the glow of the proud father. In recent days, the Cardigan Mountain School in Canaan, New Hampshire, released a YouTube video of Roberts’s speech earlier this month at the 9th grade commencement ceremony for his son, Jack.

Roberts’ remarks were gracious, inspiring, funny — and brief. He urged the boys (it’s an all-boys school) to write a note once a week — on paper, not in email — to an adult, such as a past teacher. He told them they were privileged but they shouldn’t act like it, and he urged them to introduce themselves to those who clean and shovel the walks at their new schools. And he closed by quoting lyrics from Bob Dylan’s “Forever Young.”

Back on the bench, Roberts announces that Justice Samuel Alito “has the opinion of the court in two cases.”

The first one is Matal v. Tam, Alito says. He mentions “trademark” and the “Lanham Act” and that “we affirm” the ruling below, but not much more before he is announcing the complicated lineup, which is a unanimous judgment among participating justices but with only parts of his opinion signed by a majority.

If one didn’t know that Michelle Lee had recently left as director of the U.S. Patent and Trademark Office, and been replaced by interim Director Joseph Matal, one might not immediately recognize this as one of the bigger cases of the term, argued under the caption Lee v. Tam. This is the big fight over the Lanham Act’s disparagement clause and its effect on the Asian-American rock band called The Slants.

In the courtroom, it is not immediately clear why Alito is giving such an expedited announcement. Is it because he doesn’t want to delve publicly into some of the disparaging names that have been raised in the case? Or is it just because the judgment is too complex to lend itself to easy summary?

Before we can even finish pondering that, Alito is on to his second case, Bristol-Myers Squibb Co. v. Superior Court of California. He doesn’t spend much more time than he did on the Tam summary to explain the ruling that California’s courts lack specific jurisdiction to hear the claims of nonresidents over injuries allegedly caused by the pharmaceutical giant’s drug Plavix. Alito says the Supreme Court has reversed the judgment of the “court of appeals” before correcting himself to say that it is the California Supreme Court that has been reversed and remanded.

Justice Stephen Breyer is next with the opinion in McWilliams v. Dunn, which holds that under certain circumstances the state must provide a criminal defendant with access to a mental health expert who is sufficiently available to the defense and independent from the prosecution to assist in preparing and presenting a defense.

The vote is five to four along the lines of “the usual suspects,” to cite a phrase Breyer has mentioned in recent speeches. He means the liberal versus conservative blocs, and in this case it is Justice Anthony Kennedy joining him and Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, while the newly constituted conservative bloc of Roberts and Justices Alito, Clarence Thomas, and Gorsuch are in the minority.

The chief justice announces that “Justice Kennedy has the opinion of the court in two cases.”

Packingham v. North Carolina is first, about that state’s law that bars those on its sex offender registry from accessing commercial social-media sites. Based on the tenor of oral arguments in the case, and Kennedy’s opening lines about “cyberspace” being one of the “most important places for the exchange of views,” things do not look good for the state statute.

Kennedy tosses out the names of social-media sites such as Facebook, Twitter, and LinkedIn, explaining that they are places for users to exchange political and social views with others, including petitioning their representatives on Twitter.

He explains that the “Cyber Age may be a revolution of historic proportions” and thus the court should proceed cautiously. Still, the North Carolina law was not sufficiently narrowly tailored to survive First Amendment scrutiny because it bars those on the sex offender registry from “vast realms of human thought and knowledge.” He stresses that the states may be able to enact more specific, narrowly tailored laws that prohibit a sex offender from “engaging in conduct that presages a sexual crime,” such as contacting a minor or using a website to gather information about a minor.

Kennedy explains that Alito has filed an opinion concurring in the judgment, joined by Roberts and Thomas, and that Gorsuch did not participate.

Kennedy’s second opinion is in Ziglar v. Abbasi, about whether a so-called Bivens civil rights action is available to six people of Arab or South Asian descent detained after the Sept. 11, 2001, terrorist attacks who challenged the conditions of their confinement.

Kennedy’s opinion for a four-justice majority (out of six participating) holds that most of the Bivens actions brought by the detainees should not have been allowed to go forward.

“Judicial inquiry into the national security realm raises serious separation-of-powers concerns,” Kennedy says. He is joined in full by Roberts and Alito, and for the most part by Thomas. Sotomayor and Kagan did not participate for unspecified reasons of recusal, and Gorsuch did not participate because he was not on the court when the case was argued.

Breyer has written a dissent, joined by Ginsburg, which he will read from at some length from the bench. It is the first dissent from the bench in a term in which some were predicting we might not see any at all.

“The majority concludes that the plaintiffs cannot or may not be able to bring their suit, even if they prove their allegations and even if the defendants violated clearly established constitutional commands,” Breyer says. “Justice Ginsburg and I disagree. In our view, Bivens actions should continue to provide appropriate compensation for those deprived of important constitutional rights and in times of special national-security need.”

Breyer goes on for a good 15 minutes. Alito mostly looks down or out toward the crowded courtroom, as do the other justices.

“We understand the majority’s basic concern, namely that federal officials might hesitate in carrying out their security-related responsibilities if they fear future lawsuits for damages with an attendant risk of judicial second-guessing of decisions,” Breyer says.

In time of war or national-security emergency, Bivens actions “may be particularly needed,” he adds. “History warns of the risk to liberty in times of national crisis.” He cites the Alien and Sedition Acts, the suppression of civil liberties during World War I, and the internment during World War II of “70,000 American citizens of Japanese origin.”

While the majority points to suits for injunctive relief that may be brought to challenge government overreach, those are filed during national emergencies when the courts may be hesitant to interfere. “A damages action, however, is typically brought after the emergency is over, after emotions have cooled, and at a time when more factual information is available,” Breyer says.

He closes by citing Lord Atkins, a British judge who wrote during World War II that “amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace.”

“The court should say the same here,” Breyer concludes.

With that, the chief justice signals to Clerk of the Court Scott Harris to begin today’s bar admissions. They are the last scheduled bar admissions of the term, and they include groups from the U.S. Department of Justice, George Washington University Law School, and Georgetown University Law Center.

Once the new Supreme Court Bar members are sworn in, Marshal Pamela Talkin bangs her gavel and announces that the court will return to the bench on Thursday.

Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in Bristol-Myers. The author of this post, however, is not affiliated with the firm.

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A “view” from the courtroom: Justice Gorsuch’s first opinion

A “view” from the courtroom: Justice Gorsuch’s first opinionThere was much speculation that Justice Neil Gorsuch would be assigned at least one opinion from the 13 cases of the court’s April sitting, which began one week after he took his oaths to join the court on April 10. The court takes the bench this morning, with Justices Stephen Breyer and Samuel Alito absent, […]

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A “view” from the courtroom: Justice Gorsuch’s first opinion

There was much speculation that Justice Neil Gorsuch would be assigned at least one opinion from the 13 cases of the court’s April sitting, which began one week after he took his oaths to join the court on April 10.

The court takes the bench this morning, with Justices Stephen Breyer and Samuel Alito absent, and we have our answer.

Chief Justice John Roberts says, “In case number 16-349, Henson versus Santander Consumer USA, Justice Gorsuch has his first opinion for the court.”

“Thank you, chief,” Gorsuch says. He leans forward to deliver an opinion holding that a company may collect debts that it purchased for its own account, like Santander did here, without triggering the statutory definition of a “debt collector.”

He doesn’t repeat the snappy first line of his written opinion, about the “disruptive dinnertime calls, downright deceit, and more besides” that “drew Congress’s eye to the debt collection industry.”

He does mention that everyone agrees that the term “debt collector” under the Fair Debt Collection Practices Act “embraces the repo man.” But this case is about whether those who purchase debt and try to collect if for themselves are covered by the act. The district court, and the U.S. Court of Appeals for the 4th Circuit, ruled for consumer-finance company Santander.

Gorsuch is soon delivering a grammar lesson drawn from the briefs. He notes that the federal statute defines debt collectors to include those who regularly seek to collect debts “owed … another.” And by its plain terms that language focuses on third-party collection agents working for a debt owner—not on a debt owner seeking to collect debts for itself.

He discusses the petitioners’ argument that “owed” is the past participle of “to owe” and thus embraces many debt purchasers like Santander that collect purchased debts because they necessarily seek to collect debts previously owed to another.

But that does not follow as a matter of good grammar, let alone ordinary meaning, Gorsuch says. Past participles like “owed” are routinely used as adjectives to describe the present state of a thing. He mentions an example from among several in his written opinion: “The burnt toast is inedible.”

Gorsuch moves on to some of the petitioners’ policy arguments that Congress passed the statute in large part to add new incentives for independent debt collectors to treat consumers well. “It is not this court’s role to rewrite” a constitutionally valid statutory text based on speculation about how Congress might have intended to address the burgeoning business of purchasing defaulted debt.

Gorsuch concludes by saying “The judgment is affirmed.” He neglects to announce the voting lineup, although those of us in the courtroom, without the opinion yet in hand, presume that the vote is unanimous simply because he didn’t announce any concurrences or dissents. We are correct.

Justice Ruth Bader Ginsburg is up next with two opinions. She appears to be wearing her “majority opinion jabot,” a large, gold-colored number.

Over the weekend in Washington, we spotted a man wearing a tribute to the Notorious R.B.G., complete with gray wig pulled tightly back into a bun, glasses similar to the justice’s, a judicial robe (not sure if it was polyester or not), and a makeshift jabot. The only off note was the man’s blue sneakers. That, and his five o’clock shadow.

The real R.B.G. delivers the opinion in Microsoft Corp. v. Baker, about federal appeals court review of an order denying class certification. The case stems from a putative class action by a group of owners unhappy with a design defect in Microsoft’s game console. Even from the bench, Ginsburg tosses off the name “Xbox 360” as if she’s had one of her own for years.

She does not forget to announce the lineup. Justice Clarence Thomas has filed an opinion concurring in the judgment, in which the chief justice and Alito have joined. Gorsuch took no part in the case.

Ginsburg’s second decision is Sessions v. Morales-Santana, which holds that the gender line that Congress drew in the Immigration and Nationality Act treating unwed U.S.-citizen mothers more favorably than unwed U.S.-citizen fathers is incompatible with the Fifth Amendment’s equal-protection clause.

She briefly addresses the thorny question of the appropriate remedy for the court’s holding, essentially leaving it to Congress to consider settling on a uniform way to address this particular immigration situation in a way “that neither favors nor disadvantages any person on the basis of gender.”

As Ginsburg is reading her statement in Morales-Santana, Thomas passes a note, via a marshal’s aide, to Gorsuch. The junior justice reads it, then reaches for a bench memo to write a reply, which he then hands to the aide to deliver to Thomas.

Thomas reads the note, then nods and gives a quick thumbs-up to Gorsuch. Perhaps one day, when Thomas has made his papers available to researchers (ha!), we will learn the contents of that note.

The note also reminds us of a story Ginsburg likes to tell about her first opinion assignment, and the encouragement she received from Justice Sandra Day O’Connor. Though the tradition is that new justices get a relatively easy, often unanimous decision for their first opinion, Ginsburg has recalled being dismayed about her first assignment from then-Chief Justice William Rehnquist during October Term 1993.

“The chief gave me an intricate, not at all easy, ERISA case,” Ginsburg said in a 2015 speech that is included in her book, “My Own Words.”

“I sought Justice O’Connor’s advice,” Ginsburg continued. “It was simple. ‘Just do it,’ she said.”

After Ginsburg read a summary of the 6-3 opinion in John Hancock Mutual Life Insurance Co. v. Harris Trust & Savings Bank in December 1993, O’Connor, who was among the dissenters, sent over a note that read: “This is your first opinion for the court, it is a fine one. I look forward to many more.”

Back to October Term 2016. Thomas has the last opinion of the day, in Sandoz Inc. v. Amgen Inc., regarding the Biologics Price Competition and Innovation Act of 2009. If Gorsuch delivered a grammar lesson today, and Ginsburg a civics lesson,Thomas is again cast in the role of the court’s science teacher to explain about biologic and biosimilar drugs.

Thomas reads his summary at a leisurely pace before announcing that the U.S. Court of Appeals for the Federal Circuit has again been reversed. The opinion of the court for this case argued on the last day of oral arguments is unanimous (including Gorsuch), with a concurring opinion by Breyer.

As Ginsburg and Thomas were reading from their opinions, Gorsuch occasionally took sips of coffee (or his beverage of choice) from a silver cup. Gone is the tall paper Starbucks-style cup he brought to the bench a couple of times during his first week as a justice.

That practice of the newest justice — perhaps considered too casual for the ornate courtroom — has already been discarded like burnt toast.

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