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A “view” from the Courtroom: A web of intrigue as the Term winds down

The courtroom is pretty full today as anticipation of the end of the Term grows.

The public gallery is crowded as usual. The bar section is nearly full, in part because today is the last scheduled day for a courtroom ceremony to admit attorneys to the Supreme Court bar. (This will come after the reading of opinions, when four or five individuals will join some thirty alumni of the Georgetown University Law Center to be sworn in by Chief Justice John G. Roberts, Jr. Irving L. Gornstein, a veteran of the Solicitor General’s office who is now the executive director of Georgetown’s Supreme Court Institute, will introduce the Georgetown alumni group.)

The press section has also grown more crowded than recent opinion days. This may be a good time for a reminder of the Court’s traditions and procedures for distributing opinions to the news media. While some reporters prefer to be in the Courtroom to hear the Justices deliver their summaries, which often yields some nuance, the majority of scribes stay down on the ground floor, in and around the Public Information Office. There, they can receive the opinion as soon as a Justice begins announcing it in the Courtroom and take to the wires, the Web, or the airwaves.

On several days this Term, reporters who stayed downstairs have been rewarded with a much faster understanding of some of the sharp disagreements and sidelights in the written opinions than those who go upstairs.

Take last Thursday, for example, when the Court issued six decisions. There was no evidence in the courtroom of the sharp dissent by Justice Samuel A. Alito, Jr., in Walker v. Texas Division, Sons of Confederate Veterans Inc.; or of Justice Anthony M. Kennedy’s concurrence in Davis v. Ayala, raising concerns about the toll of solitary confinement; or of Justice Clarence Thomas’s dissent in Brumfield v. Cain, in which he contrasted the lives of the death-row inmate in that case with the successful football career and other achievements of a surviving son of the murder victim in the case.

The Court takes the bench just a few seconds after ten o’clock, and Justice Elena Kagan has the opinion in Kimble v. Marvel Entertainment LLC. This is a case about a principle called stare decisis, she says, and about a patent case called Brulotte v. Thys Co.

“But it’s a story that happens to begin with Spider-Man,” she adds.

Kagan provides the background about the patent-infringement claim of Stephen Kimble, who developed a toy involving a glove that shoots “webs” in the form of pressurized foam. Kimble had met with the president of Marvel’s corporate predecessor, and soon after, that company came out with the “Web Blaster” toy, which was a glove that shoots webs from pressurized foam.

Kagan refers in the Courtroom to other “Spidey-themed products” and immediately the opinion announcement is more fun than the dry oral argument in the case back in March, in which Spider-Man was never even mentioned.

The fun ends for Kimble with the majority’s decision that stare decisis requires the Court to adhere to Brulotte, a 1964 patent decision that stands in the way of Kimble recovering any damages from Marvel. The U.S. Court of Appeals for the Ninth Circuit is upheld, and the vote is six to three.

From the bench, Kagan quotes Justice Louis D. Brandeis on the importance of stare decisis, emphasizing that it is more important that “the law be settled than that it be settled right.”

In her written opinion, Kagan quotes a different authority for the idea that the Court should sparingly use its power to “undecide” cases. “In this world, with great power there also must come—great responsibility,” the opinion quotes from S. Lee and S. Ditko, Amazing Fantasy No. 15: “Spider-Man.” (1962).

Already this morning, the reporters downstairs are having more fun.

Justice Sonia Sotomayor is next up with the decision in City of Los Angeles v. Patel. In this case about a city’s requirement that hotel operators keep records about their guests and make them available for inspection by the police, the Court rules five to four that facial challenges under the Fourth Amendment are “not categorically barred or especially disfavored,” and that Los Angeles’s requirement is facially unconstitutional because it does not provide hotel operators with an opportunity for pre-compliance review.

The Ninth Circuit is affirmed for the second time today. We’ll have to wait to read Justice Alito’s separate dissent, joined by Justice Thomas, in which he takes a rhetorical tour of five hotels and motels, most of which seem rather dangerous, where he could envision constitutional applications of the Los Angeles law.

Justice Stephen G. Breyer has another five-to-four decision, with the opinion in Kingsley v. Hendrickson. He makes fairly quick work of a case about a county jail prisoner who alleges he was roughed up in an altercation with jail officers. The majority holds that under federal civil rights law, a pretrial detainee can prevail on an excessive force claim as long as he can show that the force purposely or knowingly used against him was “objectively unreasonable.”

A contrary ruling by the U.S. Court of Appeals for the Seventh Circuit is vacated, and the case is sent back for further proceedings.

Finally, Chief Justice Roberts announces that he has the opinion in Horne v. Department of Agriculture. This is a “takings” case brought by Marvin and Laura Horne of California, who were fined by the government for refusing to comply with an order to turn over some of their raisins under a New Deal-era law in which the government seeks to stabilize the market for certain agricultural products.

The Chief Justice begins his summary with a description of government trucks arriving at the Hornes’ facility at eight o’clock one morning to pick up some of their raisins.

“When the trucks arrive, the Hornes refused to hand over the raisins,” Roberts says.

He explains that the case raises three questions, ”which we answer in turn.”

The first is whether the government’s duty under the Fifth Amendment to pay just compensation for a taking applies to the personal property at issue here as it does to real property. “The answer is yes,” he says (inverting the construction as it appears in the written opinion).

He invokes the Magna Carta during its anniversary year, noting that King John had taken corn from his subjects and that the eight-hundred-year-old charter shows that “the earliest prelude to the Takings Clause applied to personal property.”

On the second question, whether the government may avoid paying just compensation for a physical taking of property by “reserving to the property owner a contingent interest” in the value of the property, the answer is no, Roberts says.

He provides an example, apparently not in his written opinion, that many can easily understand.

“The Constitution does not allow the government to take your car without just compensation if it promises to return the quarters it finds in the seats,” he says.

For the final question, the Chief Justice addresses the government’s argument that the reserve requirement is not a taking because raisin growers voluntarily choose to participate in the raisin market. The government further argued that raisin growers who don’t like the program can “plant different crops” or sell their raisin-variety grapes for use in juice or wine.

“‘Let them sell wine’ is probably not much more comforting to the raisin growers than similar retorts have been to others throughout history,” Roberts says.

He announces the line-up (eight to one on two points), and decisions for the day are complete.

After the bar admissions, the Court’s marshal, Pamela Talkin, bangs her gavel and answers the question on the lips of many Court watchers: when will the next day for opinions be?

“This honorable Court is adjourned until Thursday at 10 o’clock,” she says.
[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in City of Los Angeles v. Patel. ]


Recommended Citation: Mark Walsh, A “view” from the Courtroom: A web of intrigue as the Term winds down, SCOTUSblog (Jun. 22, 2015, 3:30 PM),