I thought the Court’s newest justice would have a lot to say during arguments in the church-state separation case, Trinity Lutheran Church v. Comer, heard yesterday. But Justice Gorsuch asked no questions until the very end, and then nothing very pointed.
It’s been a strange Supreme Court term, like a meal that doesn’t satisfy. With only eight members on the bench after Justice Scalia’s death the odds were good that the last blockbuster opinion of the term would fall to a tie.
But, once again, Justice Kennedy was the fulcrum that allowed the Court to do some heavy lifting. In a 5-4 opinion authored by Justice Breyer in Whole Woman’s Health v. Hellerstedt the lie was exposed that Texas’ restrictive abortion clinic regulations were enacted to protect women’s health.
That left the dissenters arguing only on procedural grounds that Whole Woman’s Health had lost an earlier round and should never have got another bite of the apple.
Oh, and there was also the unanimous opinion in McDonnell v. United States. It’s perfectly okay now, through gifts and cash, to purchase access to politicians, even if it stinks.
An interesting case, and not just because I live in Baltimore.
Majestic Auto Repair was paying up to $300 for each damaged vehicle Baltimore police would steer their way from the scene of an accident. By the time the FBI broke up the deal some sixty officers were involved.
One of the officers, Samuel Ocasio, was tried and convicted on three counts of extortion and one count of conspiracy to commit. He appealed the conspiracy conviction on the grounds that in order to conspire to obtain property “from another,” conspirators must agree to obtain property from someone outside the conspiracy. Since the conspiracy was between Ocasio and the owners of Majestic Auto Repair who were paying the bribes out of their own pockets, and not “from another”, there was no conspiracy.
The Court didn’t buy it. Justice Alito delivered the 5-3 opinion, sketched above. For an in-depth explanation of the opinion go here.
“This is going to sound like a joke” Justice Alito said, “but, you know, it’s not.”
The not-joke was addressed to the lawyer for Abercrombie & Fitch who was defending the preppie fashion retailer’s decision not to hire an otherwise qualified teenager because she wore a hijab to her interview. Abercrombie says that her head covering was not in line with the company’s “classic East Coast collegiate style”. The EEOC sued the company on behalf of the teenager, Samantha Elauf, now 24, for not accommodating her religion.
Abercrombie’s defense: It couldn’t question her about her religion when she applied for a job, and she never informed them about her Muslim faith.
Which brings us back to Alito’s set-up: A Sikh wearing a turban, an Hasid wearing a shtreimel, a Muslim wearing a hijab, and a Catholic nun in habit go to the employment office and say, “we just want to tell you, we’re dressed this way for a religious reason. We’re not just trying to make a fashion statement”.
SCOTUSblog’s Amy Howe reports on the argument here.
There was a long line and demonstrators, both pro-choice and pro-life (though no pro or anti-union for the Harris case that I could see) outside the Supreme Court this morning on the last decision day of the term.
Inside the courtroom the press was there in full force; retired Justice Stevens was seated on the opposite side in the VIP section; the section for members of the bar never quite filled up, but there were plenty of spectators.
The bleached faux-hawk in the public section caught my attention. I was told these visitors are teachers attending the Supreme Court Summer Institute.
Justice Alito had both opinions for the last day, Hobby Lobby and Harris v. Quinn. He started with Harris in which the Court ruled that “partial public employees” such as homecare workers paid under Medicaid that do not belong to the union representing public employees do not have to pay a fee to the union to support collective bargaining.
Alito’s second opinion, Burwell v. Hobby Lobby, drew the most attention. The decision gives for-profit family owned corporations the same rights as persons under The Religious Freedom Restoration Act of 1993 (RFRA) which prohibits “Government [from] substantially burden[ing] a person’s exercise of religion . . ” Two family owned Christian businesses, Hobby Lobby and Conestoga Wood Specialities appealed under RFRA because they objected to the requirement under Obamacare that cover the costs of certain contraceptives for their employees.
Justice Ginsburg dissented. “The court forgets that religious organizations exist to serve a community of believers,” she wrote. “For-profit corporations do not fit that bill.”
The lawyer for a home mortgage loan fraudfeasor (I learned a new word today) had a number of colorful hypotheticals tossed at him by the Justices as they tackled a question of restitution. Here’s what he had to juggle, starting with Justice Breyer who is the Talmudic scholar of hypotheticals:
Breyer: “Mrs. Smith, I have a bridge I’d like to sell you.”. . “But I also gave her my valuable Babe Ruth bat.”
Alito: “Suppose what the person who perpetrated the fraud returns is a truckload of tomatoes . . . and by the time the tomatoes can be sold they’re all rotten.”
Scalia: “You’re really confusing me. I . . I . .both the baseball bat and the truckload of tomatoes?”
The case is Robers v. United States
For a day without a real blockbuster it turned out to be an unusually busy one for me.
Among the Supreme Court decisions today was one that overturned an Arizona law requiring proof of citizenship in order to register to vote. In an opinion announced by Justice Scalia the Court found that the federal Motor Voter law preempts Arizona’s law.
In another opinion, this one from Justice Alito, the Court said that if you want to preserve your right to remain silent you’ve got to speak up.
I also finished a couple sketches I had started earlier, the Great Hall . . . . . . . and General Suter, the Clerk of the Court, calling up admissions to the bar.
In considering whether human genes may be patented the Justices of the Supreme Court searched near and far for analogies to help them grasp the complexities of bio-science. Here are a few sketches from the oral arguments along with a few choice quotes.
Justice Sotomayor : “I can bake a chocolate chip cookie using natural ingredients – salt, flour, eggs, butter … And if I combust those in some new way, I can get a patent on that. But I can’t imagine getting a patent on the basic items …”
Justice Alito : “To get back to your baseball bat example, which at least I can understand better than perhaps some of this biochemistry. I suppose that in … I don’t know how many millions of years trees have been around, but in all of that time possibly someplace a branch has fallen off a tree …. into the ocean and it’s been manipulated by the waves, and then something’s been washed up on shore, and what do you know, it’s a baseball bat.”
Justice Breyer : “… so when Captain Ferno goes to the Amazon and discovers fifty new types of plants, saps and medicines …. although that expedition was expensive, although nobody had found it before, he can’t get a patent on the thing itself.”
And here’s a quick sketch of people lining up outside the Supreme Court in the rain Monday morning to get a seat for the arguments.
SCOTUSblog’s Lyle Denniston has the argument recap here.