Even with a number of major decisions pending, and just a couple of weeks left in its term, the Supreme Court is taking a back seat in the minds of many in Washington, either because much of the city is still celebrating a Stanley Cup for the Washington Capitals, or because attention is focused on the United State-North Korea summit meeting taking place in Singapore this week.
We bump into Solicitor General Noel Francisco on our way up to the courtroom and ask whether Deputy Solicitor General Malcolm Stewart will be present today. Francisco isn’t sure. Typically, several members of the SG’s staff, though not all, attend opinion announcements.
Stewart is a diehard, season-ticket-holding fan of the Capitals, who defeated the Las Vegas Golden Knights last Thursday to clinch their first National Hockey League championship.
The deputy solicitor general does not appear in the courtroom today. But perhaps he will make it to the Capitals’ championship parade on Tuesday, which will travel right past the Department of Justice building on Constitution Avenue. Stewart will be the one with a formal morning coat over his Caps jersey.
The courtroom is packed again today. We don’t see any spouses of the justices in their section. As we will learn from bar admissions at the end of the session, the lawyers being sworn in to the Supreme Court Bar will number nearly 150, and like last week will flow over from the bar section itself to take up more than 40 seats in the public gallery.
The groups include alumni of South Texas College of Law Houston and New England School of Law. (That’s how the latter law school is introduced, though its website indicates that its proper name is New England Law Boston.) Apparently these institutions with the broad regional monikers don’t want anyone thinking they are based in places such as Matamoros, Texas, or Rutland, Vt.
A third group is from the American Bar Association’s Senior Lawyers Division, which specializes in elder law and, according to its website, “assists lawyers and judges transitioning in their careers.”
When the justices take the bench, the one member who is under the most scrutiny for a possible career transition, Justice Anthony Kennedy, is not among them. We don’t know his whereabouts, but it is not uncommon at this time of year for a justice to miss an opinion day because of travel.
Chief Justice John Roberts is present, as usual, just four days after delivering yet another graduation address, this one at the graduation of his and Jane Roberts’ daughter, Josephine, from Stone Ridge School of the Sacred Heart, in suburban Maryland. The chief justice gave a poignant and widely praised speech last year at the 9th grade graduation of his son, Jack, from Cardigan Mountain School in New Hampshire.
By at least one account, Roberts was again funny and thoughtful at his daughter’s graduation last week, where the head of school introduced him as “Josie Roberts’ dad.”
He is now obligated to top himself at just one more high school graduation, two college commencements and an unknown number of graduate or professional school ceremonies as his two children complete their educations. So, no pressure.
The chief announces that Justice Elena Kagan has the opinion of the court in Sveen v. Melin, about whether a Minnesota law providing that a divorce revokes any “revocable beneficiary designation” made to a former spouse violates the contracts clause in Article I of the Constitution.
This case made for a lively argument in March featuring Supreme Court specialists Adam Unikowsky, for the children of a Minnesota man who died in 2011, and Shay Dvoretzky, for the man’s ex-wife, who was the primary beneficiary of the man’s life insurance policy. (It is not clear from the record, and did not come up at oral argument, how much that policy was worth.)
The children argued that the proceeds should go to them because the state law canceled the ex-wife’s beneficiary designation. The ex-wife argued that because the law had not been adopted at the time the insurance policy was purchased and she was designated, any application of that law to her situation would violate the contracts clause.
Kagan explains that the Minnesota statute does not substantially impair pre-existing contractual arrangements, and thus applying it retroactively does not violate the contracts clause.
She says from the bench that the statute “mostly doesn’t upset settled expectations” and that “no one can reasonably expect” a beneficiary designation like the one in this case “to survive such a marital breakdown.”
“Today’s holding is not novel,” Kagan says. She mentions that Justice Neil Gorsuch has filed a dissent, without having to say that everyone else has signed on to her opinion.
Justice Samuel Alito is up next with Husted v. A. Philip Randolph Institute, one of the more closely watched cases of the term. This is about whether a law the state of Ohio relies on to remove from its rolls voters who have changed residence violates any provisions of the National Voter Registration Act.
The Ohio measure cancels the registration of voters who do not go to the polls and who then fail to respond to a notice mailed to their addresses and do not vote within the next four years.
As he puts it from the bench, “We are asked whether this program complies with federal law. We hold that it does.”
Alito focuses on the federal voting law’s provision barring the removal of voters “by reason of the person’s failure to vote.” A later congressional amendment to that provision makes it clear that the statutory phrase “by reason of the person’s failure to vote” in the clause does not categorically preclude the use of nonvoting as part of a test for removal.
“We do not have the authority to second-guess Congress or to decide whether Ohio’s supplemental process is the ideal method for keeping its voting rolls up to date,” Alito says.
Roberts, Kennedy, Justice Clarence Thomas and Gorsuch have joined Alito’s opinion, with Thomas also filing a concurring opinion.
Justice Stephen Breyer, who was quietly chatting with Thomas during Alito’s opinion announcement, has written the lengthy dissent, joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor as well as Kagan. Sotomayor has a five-page separate dissent as well.
The third decision is in China Agritech Inc. v. Resh, about a putative class action by a shareholder. Ginsburg writes for a unanimous court, and goes on at some length in the kind of procedural case she seems to relish, explaining that upon the denial of a class certification, a plaintiff may not initiate a new class action beyond the applicable statute of limitations.
Finally, Roberts announces that in Washington v. United States, a case about tribal fishing rights, the judgment below is affirmed by an equally divided court. This is the case that has been knocking around the Western District of Washington and the U.S. Court of Appeals for the 9th Circuit for many years, so long that Kennedy realized belatedly that he had participated in a phase of it while he was on the 9th Circuit, before he joined the Supreme Court in early 1988.
The Supreme Court was unusually transparent in its explanation for the late recusal, with Clerk of the Court Scott Harris telling the parties, in a letter released by the court, that “the ordinary conflict check conducted in Justice Kennedy’s chambers inadvertently failed to find this conflict.”
The tie vote affirms the 9th Circuit’s 2016 decision (amended in 2017) holding that certain Indian treaties require Washington state to replace culverts under state roads that restrict the passage of salmon.
With opinions and bar admissions completed, Marshal Pamela Talkin announces that the court will return to the bench this Thursday. The court has 21 argued cases remaining.