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A “view” from the courtroom: “Only a few more days”

It’s the first “extra” day for opinions of this term, and that fact is reflected in the courtroom. The public gallery is pretty full, but the bar section is almost entirely empty.

With no bar admissions, the court’s impromptu extra opinion days rarely attract a large number of members of the Supreme Court bar, with some exceptions — say, for the very last day of the term once it is announced.

Solicitor General Noel Francisco takes a seat at one of the two counsel tables, along with eight members of his office. Only nine other lawyers fill seats in the bar section.

The most prominent is Michael Farris, the president and general counsel of Alliance Defending Freedom. The legal group has already won the judgment in Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, subject to a continuing debate about the scope of the holdings in the case. On Friday night, according to numerous promos that have run this week, the ABC show “What Would You Do?” will feature the issue by seeing how bystanders react when a lesbian couple is refused a wedding cake by a baker. (These principals are all actors playing out the scenario at hand for the unsuspecting observers.)

Farris argued on behalf of the petitioners in National Institute of Family and Life Advocates v. Becerra, a pending case about whether a California law that requires “crisis pregnancy centers” to provide their patients with certain information — including, for some, about the availability of low-cost or free abortions — violates the First Amendment.

The decision in that case will not come today.

About a minute or so past 10 o’clock, the court takes the bench, minus Justice Anthony Kennedy, who was also absent Monday. Marshal Pamela Talkin begins the traditional opening, “Oyez! Oyez! Oyez!” She is battling something that is reducing her voice to a strained rasp, and she turns toward the audience with an apologetic smile.

“All persons having business … before the honorable, the Supreme Court of the United States, … are admonished to draw near and give their attention, … for the court is now sitting,” Talkin says, her voice weakening as she tries to finish each line.

“God save the United States and this honorable court,” she says, again struggling to get the words out.

A couple of members of the court have turned to look at Talkin as she tries to get through the normally routine cry. “Don’t worry,” the chief justice tells Talkin after she finishes, “only a few more days left.”

The audience laughs, and Talkin appears relieved.

Roberts announces that Justice Ruth Bader Ginsburg has the first opinion, in Animal Science Products Inc. v. Hebei Welcome Pharmaceutical Co. Ltd. Ginsburg writes for a unanimous court that a federal court determining foreign law under the Federal Rules of Civil Procedure should accord “respectful consideration” to a foreign government’s submission, but is not bound to give “conclusive effect” to the foreign government’s statements.

This means the revival of the respondent’s U.S. antitrust suit against Chinese companies for allegedly price-fixing their Vitamin C exports.

As Ginsburg reads her summary, Justice Neil Gorsuch is wearing his reading glasses and staring down intently at some papers. Just over a year ago, on June 12, 2017, Gorsuch delivered his first opinion from the bench. His opinion in Henson v. Santander Consumer USA Inc. included a grammar lesson, with the justice using the phrase, “The burnt toast is inedible.”

As it happens, we absent-mindedly gave our cinnamon raisin bread a second cycle in the toaster this morning, and it ended up burnt and inedible.

Moving along, Roberts announces that he has the opinion in Minnesota Voters Alliance v. Mansky, a case about Minnesota’s ban on political apparel at polling places.

This case was the basis for a colorful and lively oral argument in February, with Justice Samuel Alito most notably drawing out some of the inconsistencies of the state’s enforcement of its statute with questions about whether a long list of hypothetical T-shirts might violate the law. So some observers thought he might be writing the opinion in this case.

But the chief justice has taken the assignment. His summary, like his written opinion, leads with the question of whether Minnesota is pursuing a permissible objective in barring voters from wearing certain expressive clothing or accessories in the polling place.

“Casting a vote is a weighty civic act, akin to a jury’s return of a verdict, or a representative’s vote on a piece of legislation,” Roberts says. “It is a time for choosing, not campaigning. The state may reasonably decide that the interior of the polling place should reflect that distinction.”

The view that certain campaign clothing and accessories should remain outside the polling place, shared by several other states besides Minnesota, the chief justice points out, is worthy of respect from the court.

“But the line must be reasonable,” he continues, pointing to the state’s 2010 Election Day policy, which suggested that “issue oriented material designed to influence or impact voting” would run afoul of the law.

“What qualifies as an ‘issue’?” the chief justice says. “Any number of associations, educational institutions, businesses, and religious organizations could have an opinion on an issue confronting voters in a given election.”

He cites AARP, the World Wildlife Fund and the ice cream maker Ben & Jerry’s as all having “stated positions on matters of public concern.”

A shirt declaring “All Lives Matter” could be “perceived” as political, the court was told at oral argument. But a shirt displaying a rainbow flag could be worn “unless there was an issue on the ballot” that “related somehow … to gay rights,” he adds, quoting the lawyer defending Minnesota’s law.

A shirt simply displaying the text of the Second Amendment would be prohibited, the court was advised, but a shirt with the text of the First Amendment would be allowed, the chief justice adds, reflecting the state’s responses to the Alito’s questions.

Roberts concludes by saying that Minnesota “has not supported its good intentions with a law capable of reasoned application.”

Justice Sonia Sotomayor has written a dissent, joined by Stephen Breyer, the chief justice explains.

With that, there is a slightly startling bang of Talkin’s gavel, and she summons as much of her voice as she can to say that the court will be in recess until Monday.

Recommended Citation: Mark Walsh, A “view” from the courtroom: “Only a few more days”, SCOTUSblog (Jun. 14, 2018, 4:01 PM),