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A “view” from inside the Court

Mark Walsh has covered the Supreme Court for more than twenty years, including for Education Week and as a contributor to the ABA Journal, the magazine of the American Bar Association.

It’s cool and comfortable inside the Supreme Court’s courtroom as the clock approaches 10 a.m., and the Court’s second “extra” day for opinions. (Last Thursday was the first such extra day.) It’s a reasonably comfortable day outside, too, with temperatures in the seventies but predictions for Washington’s stifling heat to return next week.

This is one of those days where, despite breathless predictions from cable anchors and advocates that one of the Term’s big cases is sure to come out, the courtroom itself is lacking some of that urgency. While the public seating area is pretty full (with a line of would-be spectators out on the Court’s plaza), the Court’s bar section is filled by only about twenty lawyers, not counting U.S. Solicitor General Donald B. Verrilli Jr. and his staff.

Theodore B. Olson, the former solicitor general who argued Hollingsworth v. Perry, the challenge to California’s ban on same-sex marriage, has been showing up regularly but insisting he has no inside line on whether a decision is coming in his big case. At about 9:50 a.m., he wanders from the bar section to the public section to greet Paul T. Katami and Jeffrey J. Zarillo, one of the two gay couples whom Olson and his liberal counterpart, David Boies, represent in the challenge to Proposition 8. The other couple, Kristin M. Perry and Sandra B. Stier, are not here today.

The Justices almost always appear within a minute after the clock strikes ten, but usually not before. Today, as if they are eager to get back to the rest of their work, it seems that they actually take the bench a few seconds before the hour.

Justice Samuel A. Alito, Jr. is not here today. We know he is in Dallas to address the State Bar of Texas. Last night, the committed Philadelphia Phillies fan donned a jersey and cap of the Texas Rangers and threw out the first pitch at the Rangers game against the Oakland A’s in Arlington, Texas. The Dallas Morning News reported that his pitch was high and to the right. He even gave an interview to one of the paper’s columnists.

Justice Elena Kagan has the first opinion, in Descamps v. United States.

“This is a case about ACCA, the Armed Career Criminal Act, possibly not what you’re here for this morning,” she says. Laughs all around.

In a very conversational tone, seldom having to refer to her prepared summary, Kagan explains the eight-to-one decision in favor of a defendant who sought to overturn his sentence enhancement under the federal law.

Because ACCA “is not very well written, it takes up a lot more of our time than we’d like,” she says.

As Kagan goes on, Justice Clarence Thomas appears to be reviewing notes and preparing to deliver an opinion. But that is not the case. Justice Antonin Scalia has the next opinion, in American Express Co. v. Italian Colors Restaurant. It’s a five-to-three decision (with Justice Sonia Sotomayor recused) holding that a contractual waiver cannot be invalidated on certain grounds under the Federal Arbitration Act.

The case involves merchants who accept American Express cards, and the name of the restaurant in the caption, combined with the sad news of the death yesterday of actor James Gandolfini, makes us think of the episode of “The Sopranos” when a hostess at family hangout Vesuvio is stealing patrons’ credit-card numbers and American Express cuts off the restaurant. But we digress.

Chief Justice John G. Roberts Jr. has the final opinion of the day, in Agency for International Development v. Alliance for Open Society International Inc. By a vote of six to two, the Court rules (with Justice Kagan recused) that a federal program providing funds to fight HIV/AIDS worldwide violates the First Amendment’s free speech clause by requiring private organizations to have a policy explicitly opposing prostitution and sex trafficking.

The Chief’s mention of prostitution and sex trafficking perks up the high school students in the public gallery, at least briefly, in a way that armed career criminals and federal arbitration did not.

Roberts ends a fairly brief summary of the AID case by saying, “We cannot improve on what was said from this courtroom 70 years ago last Friday [June 14] by Justice Robert Jackson from the flag salute case.”

He quoted Jackson’s most famous line from West Virginia State Board of Education v. Barnette: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.”

With that, at 10:20 a.m., the Justices disappear behind the curtains to get back to work on the eleven remaining cases, including the big three involving affirmative action in college admissions, same-sex marriage, and the Voting Rights Act of 1965.

The next day for opinions is Monday, June 24.

Recommended Citation: Mark Walsh, A “view” from inside the Court, SCOTUSblog (Jun. 20, 2013, 12:34 PM),