SCOTUS Map: Summer 2018

SCOTUS Map: Summer 2018The Supreme Court is in a liminal state this summer. With the departure of Justice Anthony Kennedy, and the confirmation fight over his successor stretching into a second month, the court finds itself suspended between the end of one era and the dawn of the next. It is little wonder, then, that the justices on […]

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SCOTUS Map: Summer 2018

The Supreme Court is in a liminal state this summer. With the departure of Justice Anthony Kennedy, and the confirmation fight over his successor stretching into a second month, the court finds itself suspended between the end of one era and the dawn of the next. It is little wonder, then, that the justices on the speaking circuit are fielding questions about changes both big and small. Audiences at judicial conferences, lectures and post-theater talkbacks want to know: What do the justices see on the horizon — for themselves and for the institution?

The justices deployed a variety of tactics in handling such queries, ranging from serene acceptance of the things they cannot change (everyone on the subject of Kennedy’s retirement), vigorous defense of the status quo (Chief Justice John Roberts and Justice Elena Kagan on cameras in the courtroom, Justice Ruth Bader Ginsburg on term limits), defiance (Ginsburg on her own retirement), and outright refusal to answer (Justice Stephen Breyer on the erosion of norms in the confirmation process).

The chief justice, in attendance at the U.S. Court of Appeals for the 4th Circuit’s Judicial Conference in White Sulphur Springs, West Virginia, on June 29, described his outgoing colleague Kennedy as “an extraordinary man and extraordinary jurist,” “deeply committed to collegiality and civil discourse” and “very keen on improving civic engagement and making sure people [understand] their heritage.”

Asked about recent studies showing that female justices and advocates are interrupted more frequently during oral arguments, Roberts pushed back against the idea that sexism animated these interruptions and offered some insight into his role as the court’s referee:

I follow a very strict rule when two justices are trying to talk at the same time. Like everything else in the building, we go by seniority. So I will call upon the more senior justice, whether it’s Justice Kennedy or Justice Ginsburg. The other women we have on the bench are more junior, so if there’s an interruption when somebody else is asking a question, it’s more likely to be deferred in favor of the more senior justice, as a general rule. But other things to take into it–that I think just the number of interruptions is hard to capture–if someone has been talking an extended period of time, then I might let another justice interrupt the questioner, just to balance things out. And also, even topically: if the questioning has been on one particular issue, and I know the other justices want to get in on another thing, I might let things flow that way.

Roberts conceded, however, that “it is something, I think, if people are pointing it out, it is something we have to be very sensitive to and keep an eye on it.”

On the subject of televising oral arguments, Roberts claimed that the court is already the “most transparent” branch in government. “I don’t know what institution has been improved by being televised. I know a lot that have been harmed by it, and my judgment is that it has the potential of hurting the Court… I don’t want to have to think, OK, how would that sound to however many people watching at home? Are they going to understand the dynamic of what [oral argument is] like? Particularly if you get sound bites plucked out and you don’t realize, he wasn’t really saying this, that was a hypothetical that was posed to a lawyer.”

Video of the chief justice’s talk is available on C-SPAN.

At least two of the justices booked teaching gigs in Italy this July. Justice Neil Gorsuch co-taught a course on national security and separation of powers in Padua, Italy, as part of the George Mason University Antonin Scalia Law School’s National Security Institute, while Ginsburg taught at the Loyola University Chicago School of Law’s Rome Study Law Abroad program.

In addition to Europe, Ginsburg also traveled to Israel for a string of engagements. On July 4, she appeared in Tel Aviv to accept the inaugural Genesis Lifetime Achievement Award from the Genesis Prize Foundation, an event that Andrew Hamm covered for this blog. The next day, Ginsburg went to Jerusalem for a screening of the documentary “RBG,” followed by a conversation with former Israeli Supreme Court President Dorit Beinisch at the United States Embassy on July 6. Coverage of the “RBG” screening and the Beinisch discussion comes from the Jewish Telegraphic Agency and Haaretz, respectively.

Ginsburg was back in the United States by the end of the month, participating in a July 29 talkback session after a New York performance of the play “The Originalist.” There, she stated her intention to remain on the bench for at least another five years. Whereas Ginsburg once used Justice Louis Brandeis (who retired at 82 years of age) as a benchmark, she now looks to a more recent justice as inspiration. “I’m now 85. My senior colleague, Justice John Paul Stevens—he stepped down when he was 90, so I think I have about at least five more years.” According to CNN, Ginsburg also dismissed the idea of abolishing lifetime tenure. “You can’t set term limits, because to do that you’d have to amend the Constitution… we hold our offices during good behavior. And most judges are very well-behaved.” The Associated Press and American Theatre carried additional coverage of Ginsburg’s remarks.

On July 31, Ginsburg spoke to congressional interns in Washington as part of the Committee on House Administration and the Senate Committee on Rules and Administration’s Summer Intern Lecture Series.

The next day, she gave her annual overview of the preceding term, hosted by Duke Law. Ginsburg began by noting that Kennedy announced his retirement at the court’s closing conference. “I will miss the pleasure of [Justice Kennedy’s] company at our conference table, his helpful suggestions on circulating opinions, his recommendations on art exhibitions to visit with my chambers staff, and much more.” While on the subject of changes at the court, Ginsburg also made sure to point out the court’s embrace of electronic filing, and its greater-than-usual number of high-profile disputes, this past term. “After a term of challenging cases and issues, and an unusually high number of 5-4 decisions, as I see it, we’ve earned our summer break,” the justice declared. “I hope next term we will get back to our usual 15% sharp division, rather than 40%.” Video of Ginsburg’s discussion is online, with media coverage coming from the New York Times, The National Law Journal and Duke Today.

At The Aspen Institute’s McCloskey Speaker Series on July 7, Breyer was asked what he wants the American people to keep in mind as the confirmation process for a new nominee begins. Breyer responded: “[The Constitution] lays out some frontiers… Within those frontiers, which are broad, people make up their own minds. And that’s why if you don’t like what’s going on, you go to the ballot box.” Breyer cheerfully refused to answer questions about his feelings on the obstructed Supreme Court nomination of Chief Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit, but he did dispense advice for remaining civil at work: “If I feel heated, and I might, in some case, the thing for me to do is to sit there like this” — and here Breyer assumed a placid stance, with his hands folded — “and in the evening, I tell [my wife], ‘I felt heated.’” Video is available on YouTube. The Aspen Times and the National Law Journal covered the appearance.

On July 13, Kagan spoke to congressional interns (as part of the same series that Ginsburg had participated in earlier). A couple of weeks later, during a Q&A session organized by the University of Chicago Institute of Politics, a student inquired what Kagan thought of the “precedent” of not confirming a Supreme Court justice in an election year. Kagan pushed back against the idea that this was, in fact, a precedent: “It’s hard to know what exactly the precedent is. These rules, they change a lot. It all depends. There might be an election year in which somebody will say, that’s the rule, and the next election year, somebody will say, that’s not the rule. It wouldn’t depend, I’m saying, on that rule existing for a long time. It seems to be a little more case-specific than that.”

She then pointed out the increasing partisanship of the Supreme Court confirmation process. Citing Senate votes on controversial and outspoken justices like Ginsburg and Justice Antonin Scalia, Kagan lamented:

From the Court’s point of view, it was a lot nicer and a lot better when everybody was confirmed by these lopsided votes… There have definitely been periods where the expectation has been, if you have a certain set of qualifications and if you look like you’re going to be a responsible judge–even if somebody thinks there’s going to be some set of rulings which they’ll disagree with—the expectation was that nonetheless, the President was entitled to his Supreme Court bid. That appears not to be the case anymore, and it’s hard to know how to get back to that. There’s so much tit-for-tat that goes on in these processes. Everybody has their list of times that they’ve been wronged. Republicans have their list, Democrats have their list, and they seem to be, over time, ratcheting up the level of conflict rather than trying to find ways to ratchet it down.

On bringing cameras into the courtroom, Kagan echoed the chief justice’s remarks at the 4th Circuit judicial conference: “I think the Court is going to try and resist that … Is there any informed person in the world who thinks that Congressional hearings became better when they put cameras inside those hearing rooms? The answer to that is no. Cameras in a Congressional hearing room have worked no end of damage to the seriousness of those proceedings… People can use video in ways that might be quite damaging to the way we view our process.”

CNN and The Chicago Maroon reported on Kagan’s appearance. Audio is posted on YouTube.

Justice Sonia Sotomayor traveled to Mobile, Alabama, for the August 9 keel authentication ceremony of an Expeditionary Fast Transport ship that will be known as the USNS Puerto Rico. As the ship’s sponsor, Sotomayor welded her initials into the keel plate. According to AL.com, the justice spoke about her family’s history of service in the U.S. armed forces: “We serve Puerto Rico proudly and serve the United States even more proudly.” Additional coverage comes from the Naval Sea Systems Command.

As for the man whose departure may alter the course of the court for generations to come: Kennedy, who officially took senior status on July 31, spent his summer returning to places he loves, co-teaching at McGeorge School of Law’s Salzburg, Austria program and taking on several speaking engagements in his home state of California.

As reported by the San Francisco Chronicle, Kennedy spoke at the Bohemian Club’s annual retreat in Monte Rio on July 20. A week later, at the U.S. Court of Appeals for the 9th Circuit’s Judicial Conference in Anaheim, he was asked what he planned to do with his time as a retired justice. Kennedy mused about “special assignments for the Chief Justice” and “maybe sitting on other circuits,” before noting that criminal justice reform is “very high on my agenda of things to do.” Solitary confinement is “wrong,” he explained, and “our sentences in this country are eight times longer than sentences for the comparative crimes in England and Western Europe. So we must always think about improving the rule of law.” Video of the discussion is available on C-SPAN.

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Roberts takes on 9th Circuit after Kennedy retirement

Roberts takes on 9th Circuit after Kennedy retirementJustice Anthony Kennedy is now officially a retired justice of the U.S. Supreme Court. Among other things, this means that Kennedy no longer sits as the “circuit justice” for the 9th Circuit – a position in which he was responsible for both emergency requests (such as July’s request by the federal government for the Supreme […]

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Roberts takes on 9th Circuit after Kennedy retirement

Justice Anthony Kennedy is now officially a retired justice of the U.S. Supreme Court. Among other things, this means that Kennedy no longer sits as the “circuit justice” for the 9th Circuit – a position in which he was responsible for both emergency requests (such as July’s request by the federal government for the Supreme Court to intervene in a climate-change lawsuit brought by children and teenagers) and more mundane matters, such as requests to extend the time to file a petition for review. Today the Supreme Court released a new set of circuit justice assignments, but the list remains relatively unchanged: Chief Justice John Roberts will take on the 9th Circuit, at least until a ninth justice is confirmed.

Although emergency requests are directed to the circuit justice for the geographic area from which a case arises (Alaska, Arizona, California, Guam, Hawaii, Idaho, Oregon, Montana, Nevada, Northern Mariana Islands and Washington collectively comprise the 9th Circuit, for example), the circuit justice can and generally does refer significant requests to the full court, as Kennedy did with the federal government’s application in the climate-change lawsuit. The circuits are often (but not always) assigned to a justice who has some connection with that geographic area: Justice Stephen Breyer is assigned to the 1st Circuit, where he sat as a judge before joining the court, while Justice Clarence Thomas, who hails from Georgia, is assigned to the 11th Circuit, which is made up of Alabama, Georgia and Florida. The chief justice normally takes on the District of Columbia, Federal and 4th Circuits, so it seems likely that this list could be further revised (and perhaps further reshuffled) when a new justice is confirmed.

This post was originally published at Howe on the Court.

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Court stays out of climate change lawsuit for now

Court stays out of climate change lawsuit for nowThe Supreme Court declined to intervene today in a lawsuit filed by a group of 21 children and teenagers who allege that they have a constitutional right to a “climate system capable of sustaining human life.” The federal government had asked the justices to put discovery and a trial, currently scheduled for late October, on […]

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Court stays out of climate change lawsuit for now

The Supreme Court declined to intervene today in a lawsuit filed by a group of 21 children and teenagers who allege that they have a constitutional right to a “climate system capable of sustaining human life.” The federal government had asked the justices to put discovery and a trial, currently scheduled for late October, on hold until the U.S. Court of Appeals for the 9th Circuit can rule on the government’s petition asking the appeals court to direct a federal district court to dismiss the case or, at a minimum, to stay discovery and the trial. But even as they stayed out of the dispute for now, the justices expressed some skepticism about the sweeping nature of the plaintiffs’ claims.

In the lawsuit, which was originally filed in 2015 against the Obama administration, the group contends that the federal government’s actions are causing a “dangerous climate system,” and it seeks (among other things) an order that would require the government to prepare and implement a remedial plan to phase out the use of CO2 emissions. The district court has allowed the lawsuit to go forward, and the 9th Circuit has thus far refused to step in.

On July 17, the federal government, in a brief signed by U.S. Solicitor General Noel Francisco, asked the Supreme Court to intervene. Francisco told the justices that, if either the court of appeals or the Supreme Court does not step in, the government “will be forced to participate in a highly compacted period of discovery and trial preparation followed by a 50-day trial, all of which will itself violate bedrock limitations on agency decisionmaking and the judicial process imposed by” federal law and the separation of powers. Moreover, Francisco added, because the plaintiffs are arguing that they have been harmed by “the cumulative effects of CO2 emissions from every source in the world over decades,” there would be no real harm from waiting a short time for the 9th Circuit to rule.

This afternoon the Supreme Court rejected the government’s request, calling it “premature.” But the court left open the possibility that the government could return with a similar request at a later stage in the proceedings. It also described the “breadth” of the plaintiffs’ claims as “striking,” observing that there are “substantial grounds for difference of opinion” on whether those claims belong in court at all. The justices instructed the federal district court to “take these concerns into account in assessing the burdens of discovery and trial, as well as the desirability of a prompt ruling on the” federal government’s other pending motions, which could result in dismissal of some or all of the plaintiffs’ claims.

This post was originally published at Howe on the Court.

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Court releases October argument calendar

Court releases October argument calendarTonight President Donald Trump is expected to announce his nominee to replace Justice Anthony Kennedy, whose retirement takes effect at the end of the month. Meanwhile, it was business as usual at the Supreme Court today, with the justices releasing the calendar for arguments in their October sitting, which begins on Monday, October 1. The […]

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Court releases October argument calendar

Tonight President Donald Trump is expected to announce his nominee to replace Justice Anthony Kennedy, whose retirement takes effect at the end of the month. Meanwhile, it was business as usual at the Supreme Court today, with the justices releasing the calendar for arguments in their October sitting, which begins on Monday, October 1. The justices will hear 10 hours’ worth of oral arguments over five days; the second Monday in October, October 8, is a federal holiday.

The October cases, in the order in which they will be argued, are:

  • Weyerhaeuser Co. v. U.S. Fish and Wildlife Service (to be argued Oct. 1, 2018): Whether the Endangered Species Act allows an agency like FWS to designate private land as a critical habitat when it is neither a habitat nor critical; and whether courts can review the agency’s decision not to exclude an area from the designation of a critical habitat because of the economic effects of designation.
  • Mount Lemmon Fire District v. Guido (to be argued Oct. 1, 2018): Whether the Age Discrimination in Employment Act, which bars employers from discriminating against employees because of their age, applies to local governments with fewer than 20 employees.

  • Gundy v. United States (to be argued Oct. 2, 2018): Whether the federal Sex Offender Notification and Registration Act improperly delegates to the U.S. attorney general the authority to decide whether the act’s requirements should apply to sex offenders who were convicted before the law was passed.
  • Madison v. Alabama (to be argued Oct. 2, 2018): Whether the Eighth Amendment’s bar on cruel and unusual punishment prevents the state from executing a 67-year-old inmate who suffers from dementia and says he does not remember the crime he has been convicted of committing.
  • Knick v. Township of Scott (to be argued Oct. 3, 2018): Whether the court should overrule its earlier decision holding that, before a property owner can file a lawsuit in federal court seeking compensation for the government’s unconstitutional “taking” of property, he must first pursue all available state-court remedies.
  • New Prime v. Oliviera (to be argued Oct. 3, 2018): When two parties to an agreement disagree about whether a dispute between them must go to arbitration, who should resolve that threshold disagreement – an arbitrator or a court?
  • Stokeling v. United States (to be argued Oct. 9, 2018): Whether state-law robbery convictions count as “violent felonies” for purposes of an enhanced sentence under the Armed Career Criminal Act when the convictions do not require the use of force.
  • United States v. Stitt & United States v. Sims (consolidated for one hour of oral argument on Oct. 9, 2018): Whether the burglary of a “nonpermanent or mobile structure” – such as a mobile home, trailer or tent – that is adapted for someone to stay in it overnight qualifies as a “burglary” for purposes of the ACCA.
  • Nielsen v. Preap (to be argued Oct. 10, 2018): Whether a noncitizen is exempt from mandatory detention if, after he is released from criminal custody, the Department of Homeland Security does not take him into immigration custody immediately.
  • Air and Liquid Systems Corp. v. Devries (to be argued Oct. 10, 2018): Whether products-liability defendants can be held liable under maritime law for injuries caused by products that they did not make, sell or distribute.

This post was originally published at Howe on the Court.

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Justice Ginsburg honored with lifetime achievement award in Tel Aviv

Justice Ginsburg honored with lifetime achievement award in Tel AvivThe lifetime achievements of Justice Anthony Kennedy generated an outpouring of commentary over the past week since his retirement, some laudatory and some more critical. But yesterday in Tel Aviv, Israel, the focus of the Genesis Foundation was on Justice Ruth Bader Ginsburg, presented with a lifetime achievement prize. The Genesis Prize “honors individuals who […]

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Justice Ginsburg honored with lifetime achievement award in Tel Aviv

The lifetime achievements of Justice Anthony Kennedy generated an outpouring of commentary over the past week since his retirement, some laudatory and some more critical.

But yesterday in Tel Aviv, Israel, the focus of the Genesis Foundation was on Justice Ruth Bader Ginsburg, presented with a lifetime achievement prize. The Genesis Prize “honors individuals who have attained excellence and international renown in their chosen professional fields, and who inspire others through their engagement and dedication to the Jewish community and/or the State of Israel.”

In her acceptance speech, Ginsburg spoke of two Jewish women raised in the United States “whose humanity and bravery inspired me in my growing up years” – Emma Lazarus and Henrietta Szold.

Speaking on the 242nd anniversary of the signing of the Declaration of Independence, Ginsburg praised Lazarus’ writings, including “The New Colossus,”  for evincing the poet’s “love for humankind, and especially for her People.” Ginsburg said this poem, which is etched on the base of the Statue of Liberty, “has welcomed legions of immigrants, including my father and grandparents, people seeking in the USA shelter from fear and longed-for freedom from intolerance.” (Ginsburg also noted that Lazarus was Justice Benjamin Cardozo’s elder cousin.)

Ginsburg told a story in which Szold, after the death of her mother, politely declined an offer from a man to say the Kaddish, a mourner’s prayer traditionally recited only by men. Szold had seven sisters but no brother to make the prayer.

In a letter, Szold replied that “[i]t is impossible for me to find words in which to tell you how deeply I was touched by your offer to act as ‘Kaddish’ for my dear mother.” And yet:

The Kaddish means to me that the survivor publicly … manifests his … intention to assume the relation to the Jewish community which his parent had, [so that] the chain of tradition remains unbroken from generation to generation, each adding its own link. You can do that for the generations of your family, I must do that for the generations of my family.

Ginsburg’s called “captivating” “Szold’s plea for celebration of our common heritage while tolerating – indeed, appreciating – the differences among us concerning religious practice.” “I recall her words even to this day when a colleague’s words betray a certain lack of understanding,” Ginsburg said.

Ginsburg closed with a brief statement on the relationship between her heritage as a Jew and her occupation as a judge:

I am a judge, born, raised, and proud of being a Jew. The demand for justice, for peace, and for enlightenment runs through the entirety of Jewish history and Jewish tradition. I hope, in all the years I have the good fortune to continue serving on the bench of the Supreme Court of the United States, I will have the strength and courage to remain steadfast in the service of that demand.

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Justices clean up cert docket before summer recess

Justices clean up cert docket before summer recessJames Ho may have been confirmed to the U.S. Court of Appeals for the 5th Circuit late last year, but today the Supreme Court ruled that a case that he filed before taking the bench, on behalf of a Kansas woman who alleged that police officers violated her civil rights when they tried to stop […]

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Justices clean up cert docket before summer recess

James Ho may have been confirmed to the U.S. Court of Appeals for the 5th Circuit late last year, but today the Supreme Court ruled that a case that he filed before taking the bench, on behalf of a Kansas woman who alleged that police officers violated her civil rights when they tried to stop her from praying in her own apartment, can go forward. The justices emphasized that the lower courts should have interpreted her pleadings more generously because she had acted as her own lawyer in early proceedings in the case.

Mary Anne Sause’s case arose back in 2013, when two Kansas police officers went to her home in response to a noise complaint. At first Sause refused to let the officers into her apartment; when she eventually did admit them, they told her that she was going to jail. That announcement prompted Sause (with one officer’s permission) to kneel and begin to pray. The other officer told her to stop, and she received two tickets for her failure to answer the door.

Acting without a lawyer, Sause filed a federal civil rights lawsuit against the officers, claiming that they had violated her First Amendment rights when they forced her to stop praying. The police officers asked the lower court to dismiss the case, arguing that they were entitled to qualified immunity. The U.S. Court of Appeals for the 10th Circuit ruled for the officers. Even if they did violate Sause’s rights, the court reasoned, the officers still could not be sued because there is no case in which a court ruled that a scenario like this one violated the First Amendment.

Backed not only by the state of Texas but also by a group of former federal prosecutors, Sause asked the Supreme Court to overturn the 10th Circuit’s decision without briefing or oral argument. She told the justices that the 10th Circuit had granted the officers qualified immunity “solely because the officers’ alleged conduct was so egregiously unconstitutional” that there are no similar cases. But, she argued, the court has not required identical cases for a lawsuit to go forward; what matters is whether the officers had “fair warning” that their actions were unconstitutional – which the officers here did, she said.

Allyson Ho, Jim Ho’s wife, took over as counsel of record in the case after moving to Gibson Dunn, Jim Ho’s former law firm. After considering the case at their private conferences 15 times in a row, today the justices sent the case back to the lower court. Although Sause had argued on appeal only that the police officers had violated her First Amendment right to freely exercise her religion, the court observed, she had originally argued also that the officers violated her Fourth Amendment to be free of unreasonable searches and seizures. And in this case, the court continued, the two issues are “inextricable”: Although the right to pray is “unquestionably” protected by the First Amendment, police may in some circumstances tell someone to stop praying – for example, if he were being arrested and placed in a police car. But it’s not clear, the court stressed, precisely what the circumstances of Sause’s case were. Because Sause had drafted her own complaint, the court reasoned, the federal district court that first heard her case should have interpreted it “liberally” to include “Fourth Amendment claims that could not properly be dismissed.”

In February, the Supreme Court granted a request by Republican legislators in North Carolina to block part of a decision by a three-judge federal court invalidating the state’s legislative maps. The lower court had ruled that several state legislative districts were the product of racial gerrymandering, while others violated state law, but the justices put part of that ruling on hold to give the legislators time to appeal the merits of the lower court’s decision. The brief order meant that the lower court’s ruling on the remaining districts went into effect, leaving replacement maps drawn by a special master in place.

Today the Supreme Court effectively continued its February order, in a brief unsigned opinion that affirmed the district court’s ruling requiring the state to use the special master’s maps for four districts – two in the state senate, and two in the state’s house of representatives. But the Supreme Court reversed the district court’s order requiring state house districts in Wake County (which includes the state capital, Raleigh) and Mecklenburg County (which includes Charlotte) to be redrawn on the ground that they violated a provision of the state constitution regulating the timing of redistricting. That part of the district court’s order was “clear error,” the justices explained. “Once the District Court had ensured that the racial gerrymanders at issue in this case were remedied, its proper role in North Carolina’s legislative redistricting process was at an end.”

In Harris v. Cooper, the justices affirmed, without any written comment, a ruling by another three-judge court in North Carolina rejecting a claim that the congressional redistricting plan adopted by the state’s legislature in 2016 was the product of partisan gerrymandering.

In several cases, the announcement that the justices would deny review drew separate written opinions. In E.I. du Pont de Nemours v. Smiley, Justice Neil Gorsuch filed a statement regarding the denial of review in a case involving deference to an administrative agency’s interpretation of a law, when that interpretation comes for the first time while a dispute is being litigated. Joined by Chief Justice John Roberts and Justice Clarence Thomas, Gorsuch emphasized that the lower courts are divided on the question, which he described as an “important one.”

In Rowan County v. Lund, Thomas (joined by Gorsuch) dissented from the court’s denial of review in a challenge to a North Carolina county’s practice of beginning its board meetings with a prayer led by board members. Thomas stated that the lower court’s ruling that the practice violates the Constitution’s establishment clause, which prohibits the government from endorsing a particular religion, “failed to appreciate the long history of legislator-led prayer in this country.”

Justice Stephen Breyer dissented from the denial of review in the cases of two Mississippi death row inmates. For several years, Breyer has contended that the death penalty “suffers from unconscionably long delays, arbitrary application, and serious unreliability,” and he reiterated those themes in discussing the cases of Richard Jordan and Timothy Evans in detail.

Finally, the justices added seven new cases to their docket for the fall. Those cases are:

This post was originally published at Howe on the Court.

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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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Anthony Kennedy, swing justice, announces retirement

Anthony Kennedy, swing justice, announces retirement[Editor’s Note: This post, originally published at 2:23 p.m., has been moved back to the top of the blog.] Justice Anthony Kennedy announced today that he would retire from the Supreme Court, effective July 31. In a letter to President Donald Trump, Kennedy wrote that “it is the highest of honors to serve on this […]

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Anthony Kennedy, swing justice, announces retirement

[Editor’s Note: This post, originally published at 2:23 p.m., has been moved back to the top of the blog.]

Justice Anthony Kennedy announced today that he would retire from the Supreme Court, effective July 31. In a letter to President Donald Trump, Kennedy wrote that “it is the highest of honors to serve on this Court,” and he expressed his “profound gratitude for having had the privilege to seek in each case how best to know, interpret, and defend the Constitution and the laws that must always conform to its mandates and promises.” The decision by the 81-year-old justice, who spent much of his 30 years on the court as a pivotal vote on a wide range of high-profile issues, especially since the retirement of Justice Sandra Day O’Connor in 2006, is all but certain to kick off a pitched confirmation battle because of the possibility that his successor could move the court significantly to the right on a number of those issues.

Justice Anthony Kennedy (Art Lien)

When he was nominated to the court in November 1987, Anthony McLeod Kennedy was only President Ronald Reagan’s third choice to fill the vacancy created by the retirement of Justice Lewis Powell. Reagan had first nominated Robert Bork, a judge on the U.S. Court of Appeals for the District of Columbia Circuit, to succeed Powell, but the Senate rejected Bork’s nomination by a vote of 42 to 58. Reagan next nominated another judge on the D.C. Circuit, Douglas Ginsburg, but Ginsburg withdrew his nomination after the revelation that he had used marijuana as an adult. Kennedy, then 51 and a judge on the U.S. Court of Appeals for the 9th Circuit, was confirmed to the court in February 1988 by a vote of 97-0.

When he nominated Kennedy, Reagan billed Kennedy as a “true conservative,” but he was generally regarded as a consensus pick after the failed Bork and Ginsburg nominations; Reagan himself noted that Kennedy “seems to be popular with many senators of varying political persuasions.” The Kennedy nomination drew disapproval from some conservatives, however. Senator Charles Grassley, a Republican from Iowa, characterized Reagan’s choice as a “basic compromise of principle,” while political activist Richard Viguerie described the nomination as a “total surrender to the left.”

Over the next three decades, conservatives were indeed often disappointed with Kennedy and his votes on a variety of issues, particularly social ones. One such topic was abortion. Anti-abortion voters had played a key role in Reagan’s election, and Kennedy initially provided both the president who appointed him and those voters with reason to be optimistic. Just a little over a year after his confirmation, Kennedy joined the majority in upholding a Missouri law that (among other things) defined life as beginning at conception and required doctors to conduct fetal viability tests before performing abortions on women who were 20 or more weeks pregnant. Along with Justice Byron White, Kennedy also joined a separate opinion, written by then-Chief Justice William Rehnquist, that would have effectively dismantled the test outlined in Roe v. Wade, the Supreme Court’s landmark 1973 decision establishing a woman’s basic right to an abortion. And in 2007, Kennedy wrote the majority opinion when a closely divided court upheld a federal law that criminalized a procedure known as a “partial-birth” abortion.

But in 1992, in a challenge to a Pennsylvania law restricting abortions, Kennedy wrote an unusual joint opinion, along with O’Connor and Justice David Souter, that reaffirmed the “essential holding” of Roe. “Men and women of good conscience can disagree,” the trio said, about “the profound moral and spiritual implications of terminating a pregnancy, even in its earliest stage. Some of us as individuals,” the opinion continued, “find abortion offensive to our most basic principles of morality, but that cannot control our decision.” At the same time, the Kennedy/O’Connor/Souter joint opinion established a new and less stringent test for evaluating challenges to the constitutionality of abortion regulations: Efforts to regulate abortions before the fetus is viable are constitutional as long as they do not impose an “undue burden” on a woman’s right to end her pregnancy.

Fourteen years later, Kennedy joined the court’s four more liberal justices – Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan – in striking down two parts of a Texas law that had made it significantly more difficult for abortion clinics to operate in the state. In enacting the law, the Texas legislature had pointed to the need to protect women’s health, but the majority declined to take that justification at face value.

During his 2016 presidential campaign, then-candidate Donald Trump declared that he would appoint “pro-life” justices. When pressed later about whether he wanted the Supreme Court to overturn Roe, Trump responded that, if he were able to put two or three justices on the court, it would “happen automatically.” As Reagan’s experience with Kennedy reflects, there is no way to guarantee how a nominee will vote once confirmed. At the same time, however, Trump has relied on the Federalist Society, a conservative legal group, to vet his judicial nominees. Members of that group have repeatedly vowed that, when it comes to Supreme Court nominees by Republican presidents, there should be “no more Souters” – a reference to their disappointment with the George H.W. Bush nominee. If Trump does replace Kennedy with a new justice who fulfills the president’s promise, the result could be a substantial shift on the court on abortion rights.

Kennedy’s pivotal role in the Supreme Court’s gay-rights cases prompted one law professor who studies the court to dub him the “first gay justice,” but that role could also now provide an opening for a shift in the court’s gay-rights jurisprudence.  In 1996, in Romer v. Evans, Kennedy wrote for the court – over the objections of three of his colleagues –striking down an amendment to the Colorado constitution that barred state and local governments from adopting laws or policies prohibiting discrimination based on sexual orientation. The law, Kennedy explained, “classifies homosexuals not to further a proper legislative end but to make them unequal to someone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws.”

Seven years later, the court – again, by a vote of 6-3 – ruled in Lawrence v. Texas that a Texas law criminalizing private consensual sexual relations between two adults of the same sex violates the Constitution. Some of the lawyers for the men challenging the law wept openly in the gallery as Kennedy read from his opinion for the court, emphasizing that the plaintiffs “are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.”

In 2013, Kennedy would provide the key vote and write for the court in United States v. Windsor, the case that invalidated the federal Defense of Marriage Act, which defined marriage as a union between a man and a woman for purposes of over a thousand federal laws and programs. Kennedy described the legalization of same-sex marriage by some states as a decision that gave same-sex couples “a dignity and status of immense import.” By contrast, he observed, “DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal.”

Exactly two years after the decision in Windsor, Kennedy delivered the court’s ruling in Obergefell v. Hodges, striking down Ohio’s ban on same-sex marriage. Kennedy’s opinion used the same lofty rhetoric found in his earlier gay-rights decisions, explaining that the “limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest. With that knowledge must come the recognition that laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter.”

In an interview with 60 Minutes shortly after the 2016 election, Trump described same-sex marriage as “done. These cases have gone to the Supreme Court,” he indicated. “They’ve been settled. And I’m—I’m fine with that.” But even if Trump regards the question as resolved, and the conservative successor that Trump has promised agrees, the Supreme Court has not yet weighed in on a variety of other legal issues related to marriage – such as divorce and child custody – or, more broadly, on civil-rights protections for LGBT people, for example in the workplace, schools and the military. Kennedy’s successor could hold the deciding vote in such cases, which could determine the scope of LGBT rights even if the right to same-sex marriage remains intact.

Kennedy also provided the key vote in the Supreme Court’s most recent decision on affirmative action. His vote was not entirely predictable: In 2003, in Grutter v. Bollinger, the court – by a vote of 5-4 – upheld the University of Michigan Law School’s affirmative-action policy. O’Connor wrote for the majority, in an opinion joined by Souter and Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen Breyer. Kennedy joined then-Chief Justice William Rehnquist’s dissent but also penned his own dissent, in which he reasoned that there “is no constitutional objection to the goal of considering race as one modest factor among many others to achieve diversity, but an educational institution must ensure, through sufficient procedures, that each applicant receives individual consideration, and that race does not become a predominant factor in the admissions decisionmaking.” The law school in this case, he continued, had not met that test.

Thirteen years later, Kennedy would write for the court in a ruling that upheld the University of Texas at Austin’s consideration of race in its undergraduate admissions process. He was joined by Ginsburg, Breyer and Justice Sonia Sotomayor in the 4-3 decision; Justice Elena Kagan was recused from the case, while Justice Antonin Scalia died before the court issued its opinion. Kennedy cautioned that the court’s decision was not a “blank check” for universities to use the same race-conscious policy indefinitely. Instead, Kennedy stressed, it “is the University’s ongoing obligation to engage in constant deliberation and continued reflection regarding its admissions policies.”

Lawsuits challenging affirmative-action policies at the University of North Carolina at Chapel Hill and Harvard University are currently winding their way through the lower courts and could reach the Supreme Court in the next few years. There’s no way to know how Justice Neil Gorsuch, who replaced Scalia on the bench, would vote in such a case, but if he shares his predecessor’s views, the outcome could hinge on the vote of Kennedy’s successor. Then again, even the majority in Grutter, writing in 2003, suggested that affirmative action might not be necessary in 25 years – a sunset that is now only 10 years away.

In recent years, Kennedy has sided with the court’s four more liberal justices on a wide variety of other issues, ranging from the death penalty and the Sixth Amendment to redistricting and the Fair Housing Act. Kennedy’s successor could play a central role in determining the direction of these areas of the law as well, and we can expect whomever Trump nominates to face persistent questioning about his or her views on these subjects. Of course, if past confirmation hearings (for nominees put forward by both Republican and Democratic presidents) are any predictor, whether we learn anything about those views beyond what the nominee has already written will be another matter. But what we can say with certainty is that, given Kennedy’s role on the court, the upcoming confirmation battle will be a heated one.

This post was originally published at Howe on the Court.

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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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