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The “view” from the Court: June 24, 2013

With fifteen minutes to go before the Justices take the bench on Monday, the visitors’ gallery is virtually full but there are a number of seats going empty in the bar section.

Clerk of the Court William K. Suter, one of several top court officers who wear full morning coat and tails, moves to the public gallery to greet seven or eight U.S. Military Academy cadets who have taken seats in the center section.

Suter, age seventy-five, is a retired U.S. Army general and former Acting Judge Advocate General. He has run the Clerk’s Office with military precision since 1991 but is retiring at the end of August. These are his last days in the courtroom, where one of his main duties is to swear in new members of the Supreme Court Bar in a short ceremony on most days the Court is in session.

Even though this is the last day of court on the regular schedule (though we know even going into it that more opinion days are likely this week), there will be no bar admissions today. Apparently the Court does not want to disappoint groups were it to finish work before this last Monday, though that was not an issue this year nor has it been one in recent memory.

Suter is an avuncular fellow who used to regularly dine with reporters in the Court’s cafeteria.  But the Court’s lengthy renovation project, which began in 2003, and the reporters’ need to work through lunch to write Web versions of their stories disrupted routines and the lunch tradition fell by the wayside.

The Justices, court employees, and members of Suter’s family gathered earlier this month in the Upper Great Hall for the unveiling of a portrait of the Clerk. His job, meanwhile, has been advertised and his replacement, if one has been chosen, has not been announced.

With ten minutes to go before Court, Suter returns to the bar section and chats with Ted Olson, who has been attending court regularly in anticipation of a decision in the same-sex marriage cases. Today Olson is joined by his wife, Lady Booth, and by David Boies, his co-counsel in Hollingsworth v. Perry. Most other members of the specialized Supreme Court bar with pending decisions seem to be missing today.

With the top of the hour approaching, the Court’s VIP section is starting to see some bold-faced names. Virginia Thomas, the wife of Justice Clarence Thomas, takes a seat in the second row of the section. Soon retired Justice John Paul Stevens enters and takes a seat in one of the leather VIP chairs. Stevens has recently returned to his practice of chiming in on some of the court’s big decisions. In a speech to the American Constitution Society on June 14, he said he likely would have voted with the majority in Maryland v. King to uphold DNA swabs of arrestees, even though he commended Justice Antonin Scalia’s dissent as “characteristically lucid.”

A few moments later, retired Justice Sandra Day O’Connor enters the courtroom and takes a seat next to Stevens. She has been present several times in recent weeks.

When the Justices take the bench, every member is present today, including Justice Sonia Sotomayor, who just this past Friday was the surprise guest speaker at Cicero-North Syracuse High School in upstate New York. Her nephews Conner and Corey Sotomayor, sons of her brother, Juan, were graduating from the high school. “I am a very proud aunt,” the Justice said at the ceremony.

Chief Justice John G. Roberts Jr. says that Justice Samuel A. Alito Jr. has the first opinion to announce, in Vance v. Ball State University.

With four days’ rest after throwing the opening pitch at the Texas Rangers’ game last Thursday, Alito is ready to pitch not just one majority opinion but two. Besides Vance, which adopts a narrow definition for purposes of vicarious employer liability under Title VII, Alito also has the decision in Mutual Pharmaceutical Co. Inc. v. Bartlett.

As Alito is delivering his opinions, Chief Justice Roberts passes a note to Justice Stephen G. Breyer and cocks his head Breyer’s way awaiting a response. Breyer turns toward the Chief and gives him a nod. The subject will remain a mystery to the rest of us, of course. But one wonders whether the Justices still pass notes along the lines of when Justice Harry A. Blackmun served on the Court.  Blackmun saved many of his notes and responses (which were sometimes written on his notes and sent back to him), and those topics might include the score of a World Series game being played during arguments, or a critique of a lawyer’s performance.

Justice Ginsburg, meanwhile, is poring over papers in front of her the way a Justice does when she is preparing to deliver an opinion.  We’ll soon learn that she does not have a majority opinion today, but a dissent covering two cases.

Meanwhile, Justice Breyer, whose shoulder is still in a brace of some sort from his nasty fall on a bike in April, quickly and peppily delivers the opinion in United States v. Kebodeaux, about registration requirements under the Sex Offender Registration and Notification Act.

At 10:15 a.m., the Chief Justice turns to Justice Anthony M. Kennedy, who has the long-awaited opinion in Fisher v. University of Texas at Austin. We don’t have a good view of Justice O’Connor’s face at this point as her legacy on affirmative action is on the table.

Justice Kennedy briskly makes his way though his opinion, which turns out to be a seven-to-one decision for vacating the Fifth Circuit’s decision upholding the race-conscious admissions plan at UT-Austin. It is not immediately apparent, and may not be for decades, what took so long for this outcome from the time the case was argued on October 10.

Justice Ginsburg launches into her dissent, and she draws chuckles with her line that “the notion that the Top Ten Percent Law is race neutral calls to mind Professor Thomas Reed Powell’s famous statement: ‘If you think that you can think about a thing inextricably attached to something else without thinking about the thing which it is attached to, then you have a legal mind.’ Only that kind of legal mind could conclude that an admissions plan specifically designed to produce racial diversity is not race conscious.”

At this point, most reporters and others would probably be satisfied with four decisions, including one blockbuster. But Justice Kennedy also as the decision in University of Texas Southwestern Medical Center v. Nassar, another Title VII case that results in a victory for the employer. (All in all, things could have gone worse for the University of Texas System today.)

Justice Ginsburg then delivers her two-pronged dissent in the Vance and UT-Southwestern Medical Center employment cases, joined in each by Justices Breyer, Sotomayor, and Elena Kagan.

“The Court has coralled Title VII,” Ginsburg says, and she references Ledbetter v. Goodyear Tire and Rubber Co., in which Ginsburg invited Congress to overturn the majority’s 2007 decision limiting gender-discrimination claims in pay.

“In 2009, Congress corrected that error,” Ginsburg says. “Today, the ball again lies in Congress’ court to correct this Court’s wayward interpretations of Title VII.”

With that, Court Marshal Pamela Talkin gavels the decision day to a close, and announces that the Court will return on Tuesday. The nation’s legal minds will be ready.

Disclosure:  The law firm of Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, was among the counsel on an amicus brief in support of the university in Fisher.  The law firm of Howe & Russell, P.C., a predecessor to Goldstein & Russell, P.C., represented petitioner Lilly Ledbetter in the Ledbetter v. Goodyear Tire & Rubber Co.  The author of this post is not affiliated with the firm, however.


Recommended Citation: Mark Walsh, The “view” from the Court: June 24, 2013, SCOTUSblog (Jun. 24, 2013, 2:30 PM),