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A “view” from the courtroom: No snow day here

With a blizzard forecast for the Eastern Seaboard, the Supreme Court announced on Friday that opinions could be expected on Monday, the last day scheduled public session before a four-week recess.

As the blizzard arrived on schedule at 2 p.m. Friday, socking the nation’s capital with anywhere from 17.8 inches (the official measurement at Washington-Reagan National Airport) to 30 inches (or more in outlying areas), one could accurately predict that schools, businesses, and even the federal government would remain closed on Monday.

But anyone with a memory would know that the Supreme Court respects a form of separation of powers when it comes to snow days. It is not, formally or informally, bound by the weather decisions made for the executive branch by the Office of Personnel Management. The Court tends to follow its own path in the snow.

Perhaps most famously, in 1996, the court heard arguments in Lotus Development Corp. v. Borland International Inc., a dispute over copyright for Lotus’s spreadsheet program, on a Monday when a massive snowstorm had closed the rest of the federal government.

“The contrast between the rarefied atmosphere” of the Court “and the boot-and-parka world was especially dramatic,” Joan Biskupic reported in The Washington Post the next day. Then-Chief Justice William H. Rehnquist — “who grew up in Milwaukee, where it snows in April,” Biskupic noted — decided that because the lawyers, some of whom were in from out of town, were ready to go, the argument would proceed as scheduled.

More recently, in 2012, the Court adjusted its schedule when the severe rains of Hurricane Sandy buffeted the area and most of the rest of the federal government shut down. Still, the court convened on one argument day despite the shutdown elsewhere, closed for a scheduled argument day, and convened again for rare arguments on a Thursday, when the lawyers in the case could make it to town.

There were no arguments scheduled for today. But the third Monday of the January sitting is normally a day for opinions and bar admissions. The Court seemed determined to take the bench to issue what would turn out to be four opinions in argued cases, plus an order list with two per curiam decisions and an assortment of other actions. (The bar admissions were evidently postponed.)

At the Court building today, the cafeteria is closed, and it appears that attendance is limited to a handful of personnel. The Public Information Office explains that the Court determined it could proceed with today’s non-argument session with essential staff members on hand.

The Justices may be heartened to learn that they are counted among the essential.

We head to the courtroom about 9:45 a.m. to find a full complement of the Court’s police force, a completely empty bar section, and two people in the public section. We are able to chat with one of them:  Diane Kelly-Riley, an English professor at the University of Idaho who was stranded in Washington by the storm after a higher education conference.

“I was walking by the building and saw the police presence,” she says. After learning that the Court would be in public session for opinions, she asked if she could attend and was told, “Of course.”

“This is awesome,” she says.

Closer to 10, the two spectators and Court staff members are joined by U.S. Solicitor General Donald B. Verrilli Jr. and Deputy Solicitor General Edwin S. Kneedler. There are also three guests in the Justices’ VIP section and eighteen to twenty young adults in the alcoves where the Justices’ law clerks often sit (though it isn’t clear that all these folks are clerks. They seem a bit too giddy to be here today).

In the press section, it is your correspondent and Bob Barnes of The Washington Post, although some of our colleagues (fewer than usual, though) follow their normal practice of obtaining opinions in the press room so they can set to work immediately on their stories.

At 10 a.m., the Justices take the bench. Or five of them do, anyway:  Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas, Ruth Bader Ginsburg, and Elena Kagan.

Justices Stephen G. Breyer and Sonia Sotomayor, we are informed later, have out-of-town speaking engagements that necessitate their absence. (Breyer is scheduled to speak at Harvard Law School today.) Justice Antonin Scalia is due to speak in Singapore in two days, which likely explains his absence. We don’t know the whereabouts of Justice Samuel A. Alito Jr.

But we are led to believe that none of the Justices is snowed in on an unplowed suburban side street.

Roberts, who was born in Buffalo and spent his formative years in northern Indiana — two places where it can snow in April — gives a broad smile as he looks out at the nearly empty courtroom. He announces that Justice Kagan has the opinion of the Court in Federal Energy Supply Commission v. Electric Power Supply Association.

“I see we have a big audience for the FERC case,” Kagan says. Even the small crowd chuckles audibly at that.

She summarizes a six-to-two decision (with Alito not participating) that federal law gives FERC the authority to regulate wholesale market operators’ compensation of something called demand response bids, and upholding an agency decision about the rate of compensation for demand response providers.

Her summary includes part of her opinion in which she is explaining various aspects of the electricity market and she supposes that “it is 98 degrees in D.C.”

“I guess we’ll have to imagine that today,” she says on a morning that has started out in the 20s here.

The Chief Justice announces that the second opinion of the day is by Justice Alito, in Menominee Indian Tribe of Wisconsin v. United States. Since Alito isn’t here, we think back to the day last Term when Roberts read an opinion for Justice Scalia, who was stuck in traffic but made it to the bench during oral arguments a little later.

Alito “has asked that I read the opinion,” the Chief Justice says before summarizing the decision that goes against the tribe, which was seeking equitable tolling to preserve certain contract claims to a federal contracting officer.

Just once when Roberts reads an opinion for an absent Justice, I’d like to hear him say, “And a dissent has been filed by … me.” But not today, as Alito’s opinion is unanimous.

Justice Thomas delivers another unanimous opinion, in Mussachio v. United States, a ruling that goes against a federal criminal defendant on questions of jury instruction and a statute-of-limitations defense.

Finally, Justice Kennedy delivers an energetic summary of Montgomery v. Louisiana, a six-to-three decision that the Court has jurisdiction to decide whether its 2012 decision in Miller v. Alabama has retroactive effect, and whether Miller announced a new substantive rule that is retroactive in cases on state collateral review.

In Miller, the Court held that a juvenile convicted of homicide could not be sentenced to life in prison without parole absent any consideration of the juvenile’s special circumstances.

In Montgomery, Kennedy announces that not only does the Court have jurisdiction, Miller was a new substantive rule and it is retroactive to cases such as Montgomery’s that are under state collateral review.

Before the session ends, Chief Justice Roberts says, “I would be remiss if I did not thank the Court’s employees for their dedicated efforts over the past few days and this morning, which allowed the Court to hold our scheduled sitting today.”

The five Justices leave the bench, after which the two public spectators file out of the courtroom.

Recommended Citation: Mark Walsh, A “view” from the courtroom: No snow day here, SCOTUSblog (Jan. 25, 2016, 4:38 PM),