A new seating order in the Court as the Justices returned to the bench today for arguments in two cases. Since Justice Scalia was the most senior, and since the Associate Justices are seated in order of seniority, all except the Chief had a new position on the bench. When a new Justice is eventually confirmed and sworn he or she will be seated on the far right next to Justice Sotomayor.
Sotomayor recused herself from today’s second argument, RJR Nabisco, Inc. v. The European Community, leaving only seven Justices on the bench. And the second case to be argued tomorrow, on Puerto Rico’s debt crisis, will also be one Justice short with Alito recused.
It’s been ten years since the Court last heard arguments on abortion, coincidentally the same amount of time Justice Thomas maintained his silence during arguments until he asked several questions from the bench earlier this week. Dashing some expectations he posed no questions during today’s argument.
Whole Woman’s Health v. Hellerstedt is an appeal of a Texas law that places requirements on abortion clinics so excessive that many are forced to close. Much has been written about the case so I’ll just post my sketches and point the reader to Lyle Denniston’s post on SCOTUSblog.
“Ms Eisenstein, one question,” intoned the deep voice of Justice Thomas this morning just as Assistant Solicitor Ilana Eisenstein was concluding her argument. That marked the end of Thomas’ ten year record of not asking questions during oral arguments. He went on to pepper the lawyer with a dozen more questions, perhaps to make up for the absence of Justice Scalia, his recently deceased neighbor on the bench.
Justice Scalia’s chair and that part of the bench where he sat were draped in black cloth as a memorial today when the remaining eight Justices assembled to hear arguments. The memorial will remain in place for thirty days after which the seating of the Justices will be rearranged in order of seniority.
Chief Justice Roberts gave a brief tribute to saying, “Justice Scalia devoted nearly 30 years of his life to this Court in service to the Country he so loved.”
I came across my last sketch of Justice Scalia done on January 20, which it turns out was also his last day on the bench. He delivered the opinion in Kansas v. Carr. Scalia’s last dissent was in an opinion announced on January 25, Federal Energy Regulatory Commission v. Electric Power Supply Association, but the Justice was not on the bench that day.
Then it was on to the first of two arguments heard this morning, Kingdomware Technologies v. U.S.
I’m really falling behind here and would be at the Court today if it weren’t for thirty inches of snow filling the alley where my car is entombed. It’s appropriate that the first snowfall of the season came on the same day as an Alaska case, Sturgeon v. Frost, about a moose hunter’s right to use a hovercraft on federal land was argued.
Also argued last Wednesday was a Nebraska case originating from a dispute over a tribe’s ability to tax liquor sales in a town within the borders but not part of the reservation. I didn’t sketch the argument, but this spectacular spectator in the very back of the courtroom caught my eye . . .
On Tuesday two cases were argued (Monday was the MLK holiday). In the first, Heffernan v. City of Paterson, a Paterson, NJ police detective was demoted after being mistakenly perceived as supporting a challenger to the incumbent mayor during an election campaign. Jeffrey Heffernan, a twenty-year veteran of the police force, was seen picking up a lawn sign for his mother who supported the mayor’s opponent. Had Heffernan been picking up the sign for himself and put it on his own lawn, as a government employee he would have been protected from retaliation by his boss. But because everyone agrees that he was in fact neutral in his support of candidate Heffernan may have no recourse under the First Amendment.
The second of Tuesday’s arguments, Americold Realty Trust v. Conagra Foods, is beyond my ability to explain. It involves the “citizenship” of certain trusts and how they are, or are not, like partnerships or corporations. Fascinating stuff . . . for lawyers.
Moving into a new house can be very stressful, and we’re in the middle it. So forgive me if I just lump together all the sketches from Tuesday’s one argument, Molina-Martinez v. US, and Wednesday’s two, Bank Markazi v. Peterson and Puerto Rico v. Sanchez Valle.
On Monday the Supreme Court heard a case on money, speech and unions. The argument in Friedrichs v. California Teachers Association is over “agency fees” that public-sector unions, in this case the one representing California’s teachers, can charge non-members for negotiating on behalf of all workers. The non-union teachers in whose name the case was brought object to paying the fee because they say everything a government union negotiates is political, and therefor their First Amendment speech is hijacked.
Lawyer Michael Carvin argued the case for the petitioners – really for the Koch brothers funded Center for Individual Rights.
In the end, it appeared that a majority of the Justices will have no problem overturning the Court’s forty-year precedent.
The Supreme Court yesterday heard arguments for the second time in the case of Abigail Fisher, a white student who claims she was denied admission to the University of Texas because of a policy that favored black applicants. Last time the Justices sent the case back to the circuit court, this time Justice Kennedy seemed to toy with the idea of sending it all the way back to the trial court; not likely.
You can read Lyle Denniston’s analysis here.
There’s also a lot of buzz today about Justice Scalia’s remark, “There are those who contend that it does not benefit African Americans to get them into the University of Texas where they do not do well, as opposed to having them go to a less advanced school, … a slower track school where they do well.”
He probably meant that black students more often come from high schools where the curriculum is less demanding and may be unprepared for UT’s more rigorous course load. While it sounded racist to some, it’s more likely just Scalia being his bad un-PC self.
I prepared the banner you see above for SCOTUSblog because the Court was to hear arguments today in two voting related cases, Harris v. Arizona Independent Redistricting Commission and Evenwel v. Abbott. But I didn’t expect the trifecta that came with Justice Scalia’s opinion in a Maryland voting redistricting case, Shapiro v. McManus, especially since it was argued just last month. My lucky day.
Anyway, here are the sketches from today’s two argument:
Umbrellas on the Supreme Court plaza yesterday morning, while inside I sketched two arguments.
The first argument, Tyson Foods v Bouaphakeo, concerned Iowa slaughterhouse workers and whether they could meet the test for a class-action lawsuit. Lyle Denniston reports on it here.
In the second argument, Luis v. U.S., Sila Luis, who bilked Medicare for tens of millions of dollars and had her assets frozen, wants to be allowed to use the “untainted” portion of her frozen assets to pay for her Sixth Amendment guaranteed lawyer of her choice. SCOTUSblog’s Amy Howe has the story here.