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A “view” from the courtroom: Just another (snowy) workday here

In the pre-dawn hours this morning, the website of the Office of Personnel Management delivered the news about whether an impending snowstorm in the Washington area would close executive-branch agencies.

“FEDERAL OFFICES in the Washington, DC area are CLOSED,” the notice said.

But anyone who has been paying attention knows that the OPM does not rule the Supreme Court’s decision on whether to open on a day such as this. And, indeed, with opinions and one oral argument scheduled, the court decides to carry on.

“The Supreme Court building is open to the public from 9 a.m. to 4:30 p.m.,” the court’s website announces matter-of-factly, mentioning the one oral argument and that the court “may announce opinions,” with no particular acknowledgment of the weather.

Indeed, inside the court building, one would be hard-pressed to see how this was anything but a normal day when the justices are in public session. Breakfast is being served in the cafeteria. Spectators are lined up to enter the courtroom. Reporters are gathering in the press room.

The last time the court opened on schedule on a day when snow shut the rest of the federal government was on January 25, 2016, a few days after a blizzard had socked the city. The court took the bench to deliver four opinions before an audience of exactly two spectators in the public gallery and a handful of lawyers in the bar section.

Today, the bar section is about half full and the public seating is nearly full. There are quite a few high-school students here, including a group from the Roeper School in Bloomfield Hills, Mich. Your correspondent is invited to speak to the visiting students from that school each year, which some years does not fall on a day when the court is in public session.

Today, teacher Matt Vallus has taken up my suggestion that the severe weather may make it easier for the group to get into the oral argument. Most of the 10 or so students and two teachers do make it in, which is heartening since the spectator line outside was longer than what might be expected on such a snowy day. (On the other hand, most museums and other attractions in the capital are closed.)

As the justices take the bench at 10 a.m., the snow visible through the windows to the courtyards on each side of the courtroom seems to be getting heavier by the minute.

Justice Samuel Alito delivers a summary of his opinion in Ayestas v. Davis, in which the court unanimously revives a Texas death-row inmate’s request for funding for investigative services necessary to prove his claim for federal habeas relief. Justice Sonia Sotomayor has filed a concurring opinion, joined by Justice Ruth Bader Ginsburg.

The second opinion comes from Justice Stephen Breyer in Marinello v. United States, which interprets a clause in the Internal Revenue Code and holds that to convict a defendant under the “Omnibus Clause,” the government must prove the defendant was aware of a pending tax-related proceeding, such as an investigation or audit, or could foresee such a proceeding.

The audience perks up a bit when Breyer suggests that under the government’s theory being rejected today, a taxi passenger or restaurant customer who pays the fare or leaves a tip in cash at the request of the driver or waiter might be at risk of prosecution for a federal felony.

“So could paying a babysitter $41 per week in cash for a year without withholding taxes,” Breyer says as he looks out at an audience of likely taxi passengers, diners and parents interested in a night on the town.

Justice Clarence Thomas has filed a dissent, joined by Alito.

Those who have battled the snow to reach the court today are next treated to a lively argument in Upper Skagit Indian Tribe v. Lundgren, which presents the somewhat daunting question of whether a court’s exercise of “in rem” jurisdiction overcomes the jurisdictional bar of tribal sovereign immunity when the tribe has not waived immunity and Congress has not unequivocally abrogated it.

The case involves a roughly one-acre strip of land in Washington state, which the Lundgren family contends they acquired by adverse possession from a larger tract of land later acquired by the Upper Skagit tribe. The family filed a quiet-title action against the tribe, which asserted a defense of sovereign immunity that was rejected by the Washington Supreme Court.

Just a few minutes into the argument, three rather loud electronic chimes go off, a sound we haven’t heard in the courtroom before. Sotomayor, who battles diabetes, is soon handing a device that looks like it may be her blood glucose monitor to a marshal’s aide. The aide soon returns and gives something to Sotomayor, perhaps medicine or a piece of candy to balance out her blood sugar.

The argument continues with some references that the high school students present may or may not be studying in their history classes.

“This is the Alexander Hamilton quote from the Federalist Papers: ‘It is inherent in the nature of sovereignty not to be amenable to suit without consent,’” says Ann O’Connell, an assistant to the U.S. solicitor general, who is arguing in support of the tribe with a quote from “The Federalist No. 81.”

Breyer goes back further than “The Federalist Papers” to counter O’Connell with Cornelius van Bynkershoek and his classic 1744 work, “De Foro Legatorum,” which argued that at least since the 18th century, it has been “established that property which a prince has purchased for himself in the dominions of another … shall be treated just like the property of private individuals and shall be subject in equal degree to burdens and taxes.”

Breyer cites some other scholars from the briefs, and seeks to sum up his view that the tribe does not have sovereign immunity from the suit with this: “So, if you were to have a quiz—‘what was the law of sovereign immunity in 1760?’—you know, I guess you’d have to say the law is that [if] the prince buys a department store in Iowa, I’m sorry, he’s just like another Iowan.”

The argument continues with the justices much less testy with each other than they were on Tuesday, during National Institute of Family and Life Advocates v. Becerra. Maybe it’s the snow.

When the argument concludes, Chief Justice John Roberts sees no need to thank the court’s employees for any special efforts to ensure the opening of court this morning, as he did two years ago.

After all, despite closures elsewhere around town, it’s just a regular day here at the Supreme Court.

Recommended Citation: Mark Walsh, A “view” from the courtroom: Just another (snowy) workday here, SCOTUSblog (Mar. 21, 2018, 4:39 PM),