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A “view” from the Court: June 25, 2013

There are many young people in the public gallery today, and the bar section is fuller than it has been in recent sessions.

At about 9:45 a.m., a mini-meeting of the Solicitors General Society takes place in the center aisle as the current SG, Donald Verrilli, greets Ted Olson. Nearby is Neal Katyal, who was Acting Solicitor General after Elena Kagan joined the court.

Retired Justice Sandra Day O’Connor enters the VIP seats. Her fellow retiree John Paul Stevens, who was present yesterday, will not show up today. The court’s third living retiree, David H. Souter, is rarely seen in Washington anymore, and certainly not on ninety-degree summer days, though he continues to serve as a guest judge from time to time on the U.S. Court of Appeals for the First Circuit, in Boston. (Justice O’Connor also serves, on federal appeals courts all over the country.)

Sitting down next to Justice O’Connor is Christine L. Fallon, the Court’s Reporter of Decisions. This is a job little known to the general public but vital to the Court’s enduring legal legacy.

Fallon, who took over in the spring of 2011 from longtime Reporter Frank D. Wagner, is responsible for pulling together the “syllabus” for each decision. That is the sort of executive summary that boils down the court’s legal holdings.

Reading the syllabus is a way for journalists or anyone else to quickly discern the outcome of a case. However, it is always important to read the entire syllabus, which is typically four to seven pages long. Reading only part way through might lead someone to draw the wrong conclusion about a major decision of the Court.

Fallon and her staff also work with the Justices and their chambers on the text of the opinions themselves, not on substantive matters but on “style” issues like words,  and citations. Tony Mauro of The National Law Journal has written often on the role of the Reporter, such as how in the mid-1980s the office demanded that the Justices come to an agreement on the spelling of “marijuana.” (Some justices until then had insisted on spelling it “marihuana.”)

Fallon is typically in the courtroom on decision days. The first public versions of opinions sometimes have minor typos, which are quickly corrected before “slip opinions” are sent out and then more formal published volumes follow.

It’s 10 a.m. and … nothing happens. The Justices are running just a bit late today, and they take the bench at 10:01.

Chief Justice John G. Roberts Jr. cheerfully says, “Justice Alito has the opinion of the Court in two cases this morning.”

Samuel A. Alito Jr. starts with Koontz v. St. Johns River Water Management District, a case about land-use regulation.

As Alito reads the opinion, Justice Ruth Bader Ginsburg turns to summon a marshal’s aide behind here. It appears she has forgotten to bring something she needs this morning. The aide disappears behind the curtains and soon returns with some papers. Ginsburg gives them a look for a few minutes, then turns again to the aide. This does not seem to be the right thing. The aide brings another document, and Ginsburg is satisfied. We will soon learn whether she will be delivering a majority opinion or a dissent.

Alito moves on to his second opinion, Adoptive Couple v. Baby Girl, about whether the Indian Child Welfare Act of 1978 allows a father of American Indian descent to keep custody of a child who had been given up for adoption by the mother.

The heart-wrenching case prompted Justice Anthony M. Kennedy to observe at oral argument that “our domestic-relations judges all by themselves every day have these difficult problems. … If we could appoint King Solomon, who was the first domestic-relations judge, as special master, we could do it. But we can’t do it.”

“We are told [the child in the case] is 3/256 Cherokee,” Alito says as he announces that the Court is not, like Solomon, threatening to split the baby, but is ruling against the father and sending the case back to family court in South Carolina.

This is one more case this Term with at least some mathematics involved. Yesterday, in Fisher v. University of Texas at Austin, Justice Kennedy delved into the numerical complexities of the university’s admissions program, with its grid with an Academic Index on the x-axis and the Personal Achievement Index on the y-index.

In Maryland v. King, about DNA swabs of arrestees, Kennedy went on about the 13 loci, or comparison points, in the national DNA database and the “random match probability of approximately 1 in 100 trillion” for accuracy.

But the term’s Math Achievement Award must go to Justice Clarence Thomas, who in a tax decision in May, PPL Corp. v. Commissioner of Internal Revenue, had no fewer than a half-dozen complex (at least to some of us) algebraic formulations.

There will shortly be more math discussed from the bench.

“I have the opinion for the court in case 12-96, Shelby County v. Holder,” Chief Justice Roberts says. He has been predicted as author for the case challenging certain provisions of the Voting Rights Act of 1965, and the predictions are right.

Starting out with a reference to the law’s preclearance requirements imposed on jurisdictions with a history of discrimination in voting as “a significant departure from our principles of federalism” is probably a clue where Roberts is headed.

“The Act has been a rousing success,” is another oblique clue, as the Chief Justice notes from the bench one comparison from a more detailed chart in his written opinion — that voter registration of African Americans in Mississippi grew from seven percent in 1965 to seventy-six percent in 2004.

While paying homage to Freedom Summer in 1964, when three voting-rights workers were slain in Mississippi, and “Bloody Sunday” in 1965 in Selma, Alabama, the Chief Justice points out that today, both of those cities have “African-American mayors.”

Roberts goes on for about ten minutes, explaining the majority’s decision to strike down the Section 4 coverage formula of the Voting Rights Act.

“Any race discrimination in voting is too much,” the Chief Justice says. “But our country has changed a lot in the last 50 years.”

At 10:19, before a sober and silent courtroom, Justice Ginsburg reads the summary of her dissent, which is joined by Justices Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan.

“The majority and the dissenters agree on two points,” Ginsburg begins. “First, race-based voting discrimination still exists; no one doubts that. Second, the Voting Rights Act addresses an extraordinary problem–a near century of disregard for the dictates of the Fifteenth Amendment–and Congress had taken extraordinary measures to meet the problem. Beyond those two points, the Court divides sharply.”

Immediately to her left, Justice Alito today barely moves a muscle during Ginsburg’s nine-minute reading, mostly keeping a closed fist to his cheek.

Ginsburg concludes with a reference to Martin Luther King Jr.

“The great man who led the march from Selma to Montgomery and there called for the passage of the Voting Rights Act foresaw progress, even in Alabama,” Ginsburg says. “‘The arc of the moral universe is long,’ he said, but ‘it bends toward justice,’ if there is a steadfast commitment to see the task through to completion. That commitment has been disserved by today’s decision.”

With that, Chief Justice Roberts announces that the Court “will next sit tomorrow morning at 10 o’clock. At that time, we will announce all remaining opinions ready during this term of the court.”

Disclosure: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, is among the counsel to Representative F. James Sensenbrenner et al., who filed an amicus brief in support of the respondent in this case. The author of this post is not affiliated with the firm, however.

Recommended Citation: Mark Walsh, A “view” from the Court: June 25, 2013, SCOTUSblog (Jun. 25, 2013, 2:31 PM),