On Tuesday Justice Ginsburg announced the first opinion of the Court in a double-jeopardy case, Bravo-Fernandez v. U.S., argued on the first day of the term. Ginsburg spoke at length despite a severe hoarseness that made it hard to understand, and naturally that led to some speculation about her health. Once the argument got under way, though, she participated as vigorously as usual.
The Court heard three arguments this week, only two of which I sketched. Tuesday’s case, Moore v. Texas, was about the standard used to determine if a Texas death row inmate is too intellectually disabled to be executed.
Wednesday’s immigrant detention argument in Jennings v. Rodriguez pitted the plenary powers doctrine (I had to look that up) versus judicial review.
. . . and outside the it was a very soggy couple of days . . .
With the election of Donald Trump to president and his promise to appoint a new justice in the mold of Justice Scalia it appears that not much will change on the Court in the near future.
On the dreary morning after, visitors to the Supreme Court still lined up on the plaza, members of the bar still gather by the statue of John Mashall, and the justices still took to the bench to hear arguments. The only thing remarkable, and it may mean nothing, was that Justice Ginsburg appeared to be wearing her “dissent jabot.” It’s a kind of collar, not exactly a traditional jabot, with rhinestones that the justice wears when announcing a dissent from the bench. Whether she wore it to make a subtle statement or it was just the first thing she grabbed out of her jabot closet, I don’t know. But I also noticed she wore no earrings, which, for a justice know for her sense of style, is not usual.
And so, for now, life goes on. Below are my sketches of the week’s arguments.
. . . in Evenwel v. Abbott.
Wearing her gold, star-pointy, jabot-like whatchamacallit Ginsburg announced the unanimous decision that “one person, one vote” means Texas may draw voting districts according to total population as it does now, and is not required, as the petitioners claimed, to count only eligible voters. But the Court said “may,” not must, and the question whether it would be equally permissible to count only voters in determining districts is not settled.
I also did this Hiroshige inspired banner sketch for SCOTUSblog on this lovely spring morning (the weather for the rest of the week may not be so pleasant).
After a sudden hospitalization last week, Justice Ginsburg – who I think has never missed a day of work – was back on the bench this morning to hear arguments.
Of this morning’s two cases the second, regarding a Pennsylvania man’s threatening rants on Facebook, drew the crowds. During the first I could see a few new members of the bar struggling to stay awake, although the Justices seemed to enjoy it.
The case, Elonis v. United States, was brought by Anthony Elonis who was convicted and served more than three years in prison for threatening his estranged wife with Facebook posts such as this one, “There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.”
Restrictions on First Amendment speech are permitted if that speech constitutes a “true threat”, but that can mean many things. Elonis’ lawyer, John P. Elwood’s position that his client had no intent to scare his wife, much less follow through on his threats, that he was only venting in a rap style caused Justice Ginsburg to ask, “How does one prove what’s in somebody’s mind?”
When it came the government’s turn at the lectern, Chief Justice Roberts asked, “So how do you start out if you want to be a rap artist? Your first communication you can’t say, I’m an artist, right?”
“I think you have a perfect freedom to engage in rap artistry,” replied Deputy Solicitor Dreeben. “What you don’t have perfect freedom to do is to make statements that are like the ones in this case where, after the individual receives a protection from abuse order from a court which was based on Facebook posts that his wife took as threatening, he comes out with a post and says fold up that PFA and put it in your pocket, will it stop a bullet?”
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.”