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A “view” from the courtroom: The term’s first bonus day for opinions

Today is the court’s first added day for opinions of the term, and it is coming much later than in recent terms, when opinion days were added in the second week of June.

This morning, around 9:30, I have reflexively walked into the Public Information Office looking for the orders list. But there is no orders list on a day such as this.

In the courtroom, as is typical for the first added opinion day, the bar section is almost empty. About a dozen members of the Supreme Court Bar will show up, joined by Acting Solicitor General Jeffrey Wall and Deputy Solicitor General Edwin Kneedler. Deputy Solicitor General Michael Dreeben, who is no doubt busy with his temporary assignment with the special counsel’s office, is not here.

Usually, when the justices are prepared to take the bench, they are preceded by several aides from the marshal’s office. Typically two, but more recently three, such aides emerge from the curtains and stand still for 10 or 15 seconds, a sign that the justices are about to appear. The aides, joined by a couple more who emerge from the curtains, then help push in the justices’ chairs after Marshal Pamela Talkin delivers the traditional cry.

Today, the chime goes off to signal the start of the court session, and the marshal’s aides are not yet in place. Chief Justice John Roberts is the first one through the middle curtain opening, while the aides scramble in from the side openings. It’s nothing of significance in the great realm of the universe, but just an unscripted moment in an institution that is usually precise and tradition-bound.

The chief justice announces that Justice Elena Kagan has the opinion in Maslenjak v. United States. This case, about a Bosnian Serb woman who had come to the United States as a refugee and who was convicted of lying to the government when she sought citizenship, was the last argued for the term and sparked quite a lively argument.

Kagan explains that under the relevant federal criminal statute, the government must establish that the defendant’s illegal act played a role in her acquisition of citizenship. This holding rejects the government’s view that the statute requires only a violation in the course of procuring citizenship, regardless of whether the violation made a difference in the decision to grant an application.

She cites the “riddle” from her opinion about a statement that “John obtained that painting illegally, but his unlawful acts did not play any role in obtaining it,” except in her bench statement she substitutes Jane for John.

“You would not have a clue what the statement meant, and you would think it was some sort of riddle,” Kagan says.

She also makes a reference to the fact that under the government’s theory, a long-ago speeding violation could prove problematic. That was a theme raised several times at oral argument by Roberts, who was skeptical of the government and has now joined Kagan’s opinion.

Kagan announces a voting lineup that includes an opinion by Justice Neil Gorsuch, joined by Justice Clarence Thomas, concurring in part and concurring in the judgment, and an opinion concurring in the judgment by Justice Samuel Alito. Gorsuch’s written concurrence is his first of that variety.

Next up is Justice Stephen Breyer with a 6-2 opinion in Turner v. United States. This case involves a notorious murder of a woman in the District of Columbia in 1984, and whether certain evidence the government had withheld from the defense was “material” under Brady v. Maryland.

This was argued for the federal government by Dreeben, who had seemingly mastered every fact in this complex, multi-defendant case.

Breyer describes some of the agreed-upon facts of the attack on the victim, “which was pretty gruesome,” and goes into some of the details of the “group attack theory” being challenged by some of the defendants.

“It gives you a flavor for it,” he says. “You’d have to look at the record.”

But the withheld evidence is “too little, too weak, or too distant to undermine the group attack theory,” Breyer says.

Kagan has filed a dissent that is joined by Justice Ruth Bader Ginsburg, and Gorsuch did not participate.

Justice Anthony Kennedy has the last opinion on a day devoted to the criminal law. It’s in Weaver v. Massachusetts, about a defendant’s challenge to a decision to close the courtroom to the public during two days of jury selection.

We aren’t aware in the courtroom that the “bench opinion” being distributed once Kennedy starts reading spells the state as “Masssachusetts.” It is quickly corrected in the online version.

Kennedy explains the doctrines at issue: structural error and ineffective assistance of counsel. The defendant’s counsel at trial did not object to the courtroom closure during voir dire.

Kennedy’s opinion holds for the court that, among other principles, because the defendant has not shown a reasonable probability of a different outcome but for his counsel’s failure to object to the courtroom closing or that his counsel’s shortcomings led to an unfair trial, he is not entitled to a new trial.

Amid a somewhat complicated lineup in a 7-2 judgment, Gorsuch has joined Kennedy’s opinion, a concurring opinion by Thomas, and an opinion concurring in the judgment by Alito. Breyer has written a dissent, joined by Kagan.

With that, Roberts turns to Talkin, the marshal, who bangs her gavel and announces that court will reconvene Friday at 10 o’clock. We think the marshal’s aides will be in place for that.

Recommended Citation: Mark Walsh, A “view” from the courtroom: The term’s first bonus day for opinions, SCOTUSblog (Jun. 22, 2017, 12:41 PM),