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A “view” from the courtroom: Different shades of black

It’s the first opinion day in June, and the courtroom is as full today as it is on many big argument days.

We’ll soon learn that some 120 of those seats, way more than usual, are filled by lawyers who will be admitted to the Supreme Court Bar this morning. They include a few individuals and large groups of lawyers affiliated with the South Texas College of Law Houston, the American Bar Association and the Phi Alpha Delta law fraternity. The admittees fill most of the bar section plus most of a couple of rows of the public gallery.

Every justice is present today as the court takes the bench. Justices Stephen Breyer and Neil Gorsuch are back from their joint appearance Friday at the Harvard Marshall Forum in Cambridge, Mass., where Gorsuch’s remarks on judicial independence, off-the-rack judicial robes and blowup sex dolls garnered some press attention.

What sticks in our mind first is his comment that the court is “just nine old people in polyester black robes that we have to buy at the uniform supply store.”

The statement builds on Gorsuch’s opening statement before the Senate Judiciary Committee in March, when he noted that in “other countries, judges wear scarlet, silk, and ermine. Here, we judges buy our own plain black robes.”

“And I can report that the standard choir outfit at the local uniform supply store is a pretty good deal,” the then-nominee continued. “Ours is a judiciary of honest black polyester.”

We were thinking about that plain black polyester when we saw the images of the new court’s group portrait, taken last week. In the video images in particular, Gorsuch’s robe seems to hold a darker black hue that really popped compared with the slightly duller shade his colleagues’ robes.

Is Gorsuch’s the only truly polyester one, or is his just brand new? Does the towering justice have to resort to the big-and-tall section of the uniform supply store? Does Breyer wear bespoke robes from Savile Row? Does Justice Sonia Sotomayor, who wrote in her memoir about participating in undercover operations to root out counterfeit apparel when she was a private lawyer, wear a designer robe? Is there such a thing?

Perhaps it is the dimmer lighting of the courtroom (compared with the specially illuminated conference room where the group portrait was taken), but Gorsuch’s robe today seems closer in hue to that of his colleagues, another sign that he is fitting in.

Justice Elena Kagan has the court’s first opinion this morning, in Advocate Health Care Network v. Stapleton. The court rules 8-0 that a pension plan maintained by a church-affiliated organization qualifies as a “church plan” under the Employee Retirement Income Security Act of 1974, regardless of who established it.

Kagan notes that the decision relies on the court’s interpretation of some pretty dense statutory language, but says, “here’s a stab at an explanation,” before doing a pretty good job of making it clear. Sotomayor has a concurrence, and Gorsuch did not participate.

Chief Justice John Roberts says that Sotomayor “has our opinion in two cases.”

Sotomayor removes her glasses to read summaries in Honeycutt v. United States, about forfeiture in certain drug crimes, and Kokesh v. Securities and Exchange Commission, about disgorgement in an SEC enforcement action. The first is unanimous by an eight-member court, with Gorsuch not participating, while the second is unanimous, including Gorsuch’s second vote in an argued case.

Justice Samuel Alito is up next with Town of Chester, New York v. Laroe Estates, about standing for a litigant seeking to intervene in a property rights case. The opinion is unanimous, including Gorsuch.

Each time we hear the caption of that case — Chester v. Laroe — we can only think of “Chesty LaRue,” a stage name or persona (and perhaps a real person) cited on “Seinfeld” and “The Simpsons,” among other places. But that ribald name is not to be confused with “Sandy,” the blowup doll wearing only a boa that Gorsuch encountered when he was invited to tea by a dean at Oxford in the early 1990s, as he recalled in his remarks at the Harvard Marshall Forum last week.

The court has four unanimous opinions today, which followed four opinions last week that were unanimous or at least partly unanimous.

Breyer likes to talk about how the court is often more in agreement than in disagreement, but even he was being a tad conservative when he told the Harvard Marshall Forum that “we’re unanimous about 40 percent of the time.”

According to SCOTUSblog’s statistics, the court was unanimous in 48 percent of merits decisions last term and unanimous on average 49 percent of the time over the last six full terms before that.

Surely we’re in for some divided opinions during the rest of June, perhaps even the announcement of some rearguments in cases that were deadlocked 4-4. But for now, the justices are all wearing the same shade of black.

Recommended Citation: Mark Walsh, A “view” from the courtroom: Different shades of black, SCOTUSblog (Jun. 5, 2017, 4:40 PM),