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A “view” from the courtroom: An anniversary, and later a tense exchange

The court has returned from its nearly four-week midwinter recess, one marked by a number of extracurricular orders, an even bigger number of public appearances by Justice Ruth Bader Ginsburg, and a smaller number of public appearances by other justices.

Presumably, some work has gotten done, because the court has announced the possibility of opinions on Wednesday, which would add to the whopping four merits opinions that have come down so far.

We are not up in the courtroom for the first argument this morning, as we and many other reporters are still down in the pressroom dealing with today’s large orders list.

But when the justices take the bench, Chief Justice John Roberts has an announcement.

“Before we begin today, I would like to note that last Sunday, February 18, marked the 30th anniversary of the day our colleague Justice Kennedy took the judicial and constitutional oaths as a new member of this court. …”

As he is saying this, reporters in the pressroom, hearing Justice Anthony Kennedy’s name on the speaker in the adjacent public information office, practically fall over ourselves rushing in to hear the rest of the announcement.

“On behalf of the court,” the chief justice continues, “I would like to extend to Justice Kennedy our heartfelt congratulations on what is for all of us a very happy anniversary.”

The reporters, who perhaps thought momentarily that the unusual statement might relate to a possible retirement, slink back to their desks.

(The speaker piping audio from the courtroom is usually turned on only for the first few moments of each court session, except on opinion days, when opinion announcements are aired in full.)

On February 20, 2013, Roberts marked Kennedy’s 25th anniversary on the court, with slightly different language than he used today.

“On behalf of the court, I congratulate you, Justice Kennedy, on your distinguished service. We all look forward to sharing many more years with you in our common calling.”

Before anyone gets too excited about the absence of “many more years” in today’s announcement, we’ll point out that the tradition-bound court appears to rely on a series of scripts for these occasions.

Roberts used essentially the same language as today’s on November 28, 2005, to recognize Justice John Paul Stevens, the last justice to reach the 30-year mark. (Though that date was when President Gerald Ford nominated Stevens. The justice’s December 19 anniversary of joining the court would come during the holiday recess. And yes, it was a mere matter of weeks between Stevens’ nomination and his taking the bench.)

We couldn’t find in the court’s journal a recognition of Stevens’ 25th anniversary in 2000 by Chief Justice William Rehnquist. But last year, Roberts recognized Justice Clarence Thomas’ 25-year mark with remarks that included “sharing many more years with you in our common calling.”

Today’s other noteworthy moment occurs during the second argument of the day, in City of Hays, Kansas v. Vogt. The case presents the question of whether the Fifth Amendment is violated when authorities use the allegedly compelled statements of a public employee in a probable-cause hearing but not in a criminal trial.

At least three justices, Samuel Alito, Sonia Sotomayor and Elena Kagan, make repeated references to the case as “odd,” presenting procedural complexities.

The argument really starts sparking when Justice Stephen Breyer, who will mark his 25th anniversary on the court next year, is questioning Kelsi Corkran, the lawyer representing the City of Hays police officer who got in trouble for mentioning, during a job interview with a nearby police department, a knife he possessed. Breyer presses Corkran about a point and when the lawyer says that “none of this is in the record,” Breyer says, “It may not be in the record.”

Roberts, who has been persnickety about discussions of extra-record information, leans forward and says, “That’s an important point, isn’t it?”

Before Corkran can answer, Breyer responds, “Of course it’s an important point.”

As the courtroom chuckles at this, the chief justice’s ire appears to rise.

“Well, before we start having an extended exchange about … something that’s not in the record, … I guess I would just like to point out it is not in the record,” Roberts says.

Corkran tries to speak, but the chief justice isn’t done, with his anger affecting his usually clean syntax.

“How do we know it’s been adequately — had a chance for people to object to it and all that?” he says. “It’s not just a passing comment that it’s not in the record.”

And before Corkran can even think of responding, Breyer shows his own mild flash of anger.

“Nor is actually mine a passing comment because Article III of the Constitution says we are to take real cases and controversies,” Breyer says, at times looking directly over to Roberts. “And to decide a major matter where, in fact, going from what is in the record to an earlier stage of this and discovering if it’s true, that there was no instance about which you’re complaining, in my mind raises the question as to whether this is, in fact, an appropriate case or controversy for the court to take.”

And by now there is little pretense of directing a question to the lawyer as the chief justice responds, “And we’re supposed to decide whether the cases are controversies according to law. And as far as I’m concerned coming in and saying I want to know about this thing that’s not in the record is no different from somebody else coming off of the street and saying: ‘Hey, wait a minute, I know what happened in this case.”

He tries to bring Corkran back into the colloquy. “So go ahead and answer” Breyer’s question, Roberts says. “It’s a question you have been presented with.”

Breyer tells Corkran, “You don’t have to answer it.”

And Roberts has one more thought: “No, no, feel free. I’m just saying I will discount the answers because it is not something that’s in the record.”

Corkran is then allowed to speak, and she points out that “reason it is not in the record is because petitioner chose to seek this court’s interlocutory review at the pleading stage.”

By this time, we have completely forgotten, if we were ever paying attention to, what the “it” is that isn’t in the record that is causing all this trouble.

The argument calms down after that. A little later, Roberts passes a note to Breyer, who reads it and responds with what seems like an amicable expression and gesture.

The flashpoint doesn’t seem like anything that would knock the chief justice off script next year or belie his expected declaration that he and his colleagues look forward to sharing “many more years” with Breyer in their common calling.

Recommended Citation: Mark Walsh, A “view” from the courtroom: An anniversary, and later a tense exchange, SCOTUSblog (Feb. 20, 2018, 5:40 PM),