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A “view” from the Court: Bar admissions, but no blockbusters

We’re entering the home stretch for opinions, and after a relatively sleepy couple of opinion days last week, anticipation is ramping up.

The public gallery of the courtroom is full this morning. While there is a shortage of star power (no celebrities or Obama administration luminaries in evidence), there is one group of spectators that is especially excited to be here. The Supreme Court Summer Institute for Teachers has been going on since Thursday, with twenty-nine high school teachers from around the country coming together for a few intense days of studying the Court.

The program is sponsored by Street Law, an organization that provides curricular materials about the legal process, and the Supreme Court Historical Society. The teachers have been mostly meeting a few blocks away, at Georgetown University Law Center. With their visit to the courtroom today, the teachers are hoping to hearing a decision in one or both of the cases they have studied particularly closely: McCullen v. Coakley, a challenge to a Massachusetts law establishing a buffer zone that regulates speech around abortion clinics, and Riley v. California, one of two cases about whether the police, when they arrest someone, may search the contents of his cellphone without a warrant.

Alas, neither of those decisions will come down today, and this group of teachers leaves town on Tuesday, before the next opinion day on Wednesday. Meanwhile, another group of about thirty teachers arrives for the second installment of the institute, beginning late on Thursday. The institute’s planners are keeping their fingers crossed that the Court will still have opinions to release next Monday, when that group of teachers is scheduled to visit the courtroom.

Meanwhile, there are others who have arrived today in groups. Today is the last day of the term for in-courtroom admissions to the Supreme Court bar.  (Although the Court is scheduled to be in session next Monday, the Clerk’s office does not schedule such in-courtroom bar admissions on the last Monday in June since it isn’t a certainty there will actually be a court session.)

At about 9:50 a.m., Supreme Court Clerk Scott S. Harris gives a final talk about procedures to the some sixty-seven lawyers who will be sworn into the bar this morning.  The affable Harris is completing his first term as clerk, and while his courtroom role is largely ceremonial, he oversees a large office that is the backbone of the Court, keeping petitions for certiorari, merits briefs, and emergency applications (such as in death penalty cases) moving around the building.  And while the Court is growing increasingly comfortable with electronic documents, much of its business, as Michael Scott of “The Office” might say, is still conducted on paper.

Today there will be six unaffiliated lawyers and four legal groups sworn into the Supreme Court bar. The groups are from the Lake County, Colorado, bar association (introduced U.S. Rep. David Joyce of Colorado); Georgetown University Law Center (introduced by Irv Gornstein, the executive director of the school’s Supreme Court Institute and a former assistant to the Solicitor General; the University of the Pacific McGeorge School of Law; and a group called Women En Mass.

On opinion days, the bar admissions occur after opinions are delivered, so reporters are usually high-tailing out of the press section as soon as the last opinion is delivered. Since the press section abuts the area of the courtroom where the bar inductees are usually seated, though, reporters often chat with the pending bar members before the session starts, and they gently inform the lawyers that while their admission to the Supreme Court bar is undoubtedly an important milestone to them and their families, it probably will not be making the papers or other news outlets.

At 10 a.m., the Justices take the bench, and Chief Justice John G. Roberts Jr. indicates that Justice Elena Kagan has the first opinion, in Loughrin v. United States.  It’s a case interpreting part of a federal bank fraud statute, and one that has not gotten a lot of ink.

Justice Kagan provides some of the juicy details:  how petitioner Kevin Loughrin pretended to be a Mormon missionary as he went door to door around Salt Lake City rifling through residential mailboxes to steal checks, including the occasional blank check.  For several of those, Loughrin went to a Target store to present the altered checks for merchandise.  He would briefly leave the store, then walk back in and return the merchandise for cash.

The federal government eventually caught up with Loughrin, and because the checks in question were drawn on federally insured banks, he was charged under the federal bank fraud statute.  Loughrin had sought a jury instruction that would have required that he had intended to defraud a financial institution, but the trial court declined and he was convicted.

In her opinion, Justice Kagan handily resolves a circuit split in favor of the government’s view that the statute does not require it to prove that a defendant intended to defraud a financial institution.  The opinion is mostly unanimous, but with some opinions concurring in part and concurring in the judgment by Justice Antonin Scalia (joined by Justice Clarence Thomas) and by Justice Samuel A. Alito Jr.

Next up is our star attraction of the day, Justice Scalia with the court’s opinion in Utility Air Regulatory Group v. Environmental Protection Agency.

This is the case addressing EPA’s decision to make stationary sources of carbon dioxide and other greenhouse gases subject to the Clean Air Act’s Prevention of Significant Deterioration (PSD) provisions. This would subject potentially tens of thousands of sources of greenhouse gases – such as schools, prisons, and shopping centers – to permitting requirements.

“The cost of administering the permit programs would balloon into the tens of billions of dollars, and decade-long delays in issuing permits would become commonplace, causing construction to grind to a halt nationwide,” Justice Scalia says from the bench.  “But EPA came up with a simple solution to avoid those problems:  It would just rewrite the statute.  Or, as the agency more delicately put it, it would ‘tailor’ the statute to accommodate greenhouse gases.”

The EPA’s “tailoring rule,” the Justice points out, raised the coverage threshold for greenhouse gases from statutory figure of 100 to 250 tons per year to “the agency’s chosen figure of 100,000 tons per year,” to keep the relevant permitting programs confined to a relatively small number of large industrial sources of the gases.

Justice Scalia concludes in the first part of his opinion that the Clean Air Act does not give the EPA the discretion to adopt its preferred interpretation. This part of the decision is five to four, with Chief Justice Roberts and Justices Thomas, Anthony M. Kennedy, and Alito joining Scalia.

Scalia discusses the Court’s 2007 in Massachusetts v. EPA at some length.  He notes that even though the holding of Massachusetts was that the Clean Air Act covered greenhouse gases because the act’s definition of air pollutant encompassed every airborne substance, the agency has routinely given “air pollutant” a narrower construction.

“It takes some cheek for EPA to insist that it cannot possible give ‘air pollutant’ a reasonable, context-appropriate meaning” in this case “when it has been doing precisely that for decades,” Scalia says.

After going on for some ten minutes, Scalia elicits some laughs in the courtroom when he says, “That just the first half.”

The second half is unanimous in some respects and seven to two in some parts. Scalia says that sources that are already required to obtain PSD permits because of their emission of other pollutants besides greenhouse gases must comply with EPA requirements to comply with emissions lists that reflect the “best available control technology” for every regulated pollutant, including greenhouse gases.

This should make the agency happy, Scalia says.

“It bears mentions that EPA is getting almost everything it wanted in this case,” he says.  “It sought to regulate sources that it said were responsible for 86 percent of all the greenhouse gases emitted from stationary sources nationwide.  Under our holdings, EPA will be able to regulate sources responsible for 83 percent of those emissions.  To permit that extra 3 percent, however, we would have to recognize a power in EPA and other government agencies to revise clear statutory terms in order to accommodate their view of how statutes would work.”

And that would undermine the separation of powers, Scalia concludes. He then rattles off the complicated listing of who is joining which opinion in full or in part, and so forth, before leaning back in his chair.

The Chief Justice has the final opinion of the day, a unanimous decision (with, in keeping with the theme of the day, some concurring opinions and opinions concurring in the judgment) in Halliburton Co. v. Erica P. John Fund, a complex case about the requirements for securities-fraud plaintiffs.

After several minutes of explaining that decision, the Chief Justice turns to Scott Harris to indicate that “the Court will entertain motions for admission to the bar of the Court.”  Most reporters leave as usual, and some sixty-seven new members are admitted to the bar.

At exactly 10:30 a.m., the marshal gavels the session to adjournment until Wednesday.

[Disclosure:  The law firm of Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, was among the counsel to the petitioner in Loughrin and on an amicus brief in support of the respondent in Halliburton.  However, the author of this post is not affiliated with the firm.]

Recommended Citation: Mark Walsh, A “view” from the Court: Bar admissions, but no blockbusters, SCOTUSblog (Jun. 23, 2014, 4:15 PM),