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A “view” from the courtroom: The “court of history” is in session

Heading upstairs to the courtroom this morning, we overhear a court employee telling some members of the public who will make it inside, “Welcome to today’s non-argument session.”

Although the court officially refers to opinion days such as today as “non-argument sessions,” that description will be tested today by justices offering arguments and opinions on both sides of two key cases. But we’re getting ahead of ourselves.

Next to last non-argument session, with opinions in NIFLA v. Becerra and Trump v. Hawaii

In the courtroom, Mark Janus and Gov. Bruce Rauner of Illinois are back in the center section of the public gallery, once again awaiting a decision in Janus v. American Federation of State, County, and Municipal Employees. It’s a good thing that the governor, who is running for re-election and is supportive of the challenge to the way public-employee unions have been doing business for more than 40 years, has nothing so pressing back in Illinois that it is keeping him from hanging out at the court.

Speaking of elections, today is primary election day in Maryland, where at least one member of the court is an eligible voter. Whether that member voted early or will be getting to the polls today, we hope he finds the “island of calm in which voters can peacefully contemplate their choices,” as Chief Justice John Roberts put it in the recent decision in Minnesota Voters Alliance v. Mansky, drawing on language from the state’s brief.

In the VIP box, we spot two spouses of the justices. Virginia Thomas, the wife of Justice Clarence Thomas, takes her seat, followed by Joanna Breyer, the wife of Justice Stephen Breyer, who was here yesterday.

Also in the justices’ guest box is Jordan Lorence of Alliance Defending Freedom. He is no doubt awaiting the decision in National Institute of Family and Life Advocates v. Becerra, in which ADF is representing crisis pregnancy centers challenging certain requirements imposed on them by California law. Lorence sometimes sits in the bar section, as we noted the other day, but this is the second time this spring he has snagged a seat in the VIP box.

On the bench this morning, all the microphones are properly positioned, unlike yesterday, when several were askew. When the court takes the bench, the chief justice announces that Thomas has the opinion in NIFLA.

Thomas begins summarizing how “crisis pregnancy centers” run by “pro-life” organizations were targeted by a California law that imposes certain requirements on them. Licensed clinics must notify women that California provides free or low-cost services, including abortions. Unlicensed clinics must notify women that they are not licensed to provide medical services. The provisions were upheld below.

“In an opinion on file with the clerk today, we reverse,” Thomas says.

The license-notice requirement likely violates the First Amendment, he says, adding that “California has less intrusive ways of informing women” that these services exist.

He soon moves on to the notice required of unlicensed centers, concluding that the provision unduly burdens protected speech and also likely violates the First Amendment.

Thomas is done within about five minutes, and he announces that Justice Anthony Kennedy has filed a concurring opinion, joined by Roberts and Justices Samuel Alito and Neil Gorsuch.

He says that Breyer has filed a dissent, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

Breyer is going to read part of his dissent, and there is no confusion about that, as there was yesterday.

He takes issue with the majority’s reasoning that the California law compels the crisis pregnancy centers to speak a particular message. The same can be said of much “ordinary health, economic, or social regulation,” he says.

“What about laws requiring hospitals to talk about vaccines or seat belts, laws requiring landlords to tell tenants about garbage disposal rules,” or laws requiring doctors, lawyers, engineers and accountants to disclose information to their clients, Breyer asks.

“There are even disclosure laws relating to petting zoos,” he says.

Breyer makes several points stemming from his view that the majority pays inadequate attention to “precedent directly on point, namely a case involving disclosure in the context of abortion.” He notes that in Planned Parenthood of Southeastern Pennsylvania v. Casey, in 1992, the court upheld a law that required doctors to tell women about state resources for adoption services.

“If a state can lawfully require a doctor to tell a woman seeking an abortion about adoption services, why should it not be able to require a medical counselor to tell a woman seeking prenatal care about childbirth and abortion services?” Breyer says. “After all, the law must be evenhanded.”

He makes several more points, but he also reserves some of his energy for later.

Roberts announces that he has the opinion in Trump v. Hawaii. As he says this, it seems to dawn on Janus and Rauner that today will not be the day for the decision in the Janus case.

The chief justice outlines the background of the president’s previous entry bans for citizens of certain Muslim-majority countries, which ended up with the September 2017 presidential proclamation that is known as the third version of the ban.

He notes that there are statutory challenges brought under the Immigration and Nationality Act, as well as a constitutional claim brought under the First Amendment’s establishment clause.

As Roberts discusses in some detail his conclusion that the proclamation does not violate the INA, Solicitor General Noel Francisco, who argued the case for the administration, sits forward in his chair at the counsel table and listens intently.

After disposing of the statutory claims, Roberts tackles the establishment clause claim.

“At the heart of plaintiffs’ case is a series of statements by the president and his advisers casting doubt on the official objective of the proclamation,” Roberts says.

He cites, among others, the best-known one, when candidate Donald Trump called for a “total and complete shutdown of Muslims entering the United States.”

He pauses for a moment before he says, “The president of the United States possesses an extraordinary power to speak to his fellow citizens and on their behalf.”

This power has often been used to combat bigotry, he notes, citing among other things comments by President George W. Bush at the Islamic Center in Washington in the days after the terrorist attacks of September 11, 2001, that the “face of terror is not the true faith of Islam.”

“Yet it cannot be denied that the federal government and the presidents who have carried its laws into effect have—from the nation’s earliest days— performed unevenly in living up to those inspiring words,” Roberts says.

The chief justice seems, momentarily, to be traveling down one path on a key issue in a major case and heading down the other path overall. That’s never happened before, right?

But he is soon back on the administration’s track.

“The issue before us is not whether to denounce” the president’s statements, the chief justice says. “It is instead the significance of those statements in reviewing a presidential directive, neutral on its face, addressing a matter within the core of executive responsibility.”

Roberts moves quickly through the arguments raised comparing the president’s proclamation with the Japanese internment policy upheld in 1944 in Korematsu v. United States.

Korematsu has nothing to do with this case,” Roberts says. The dissent’s reference to that case “affords this court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear,” Roberts says, quoting Justice Robert Jackson’s dissent, it “‘has no place in law under the Constitution.’”

Kennedy and Thomas have written concurrences, the chief justice notes, while Breyer has a dissent joined by Kagan, and Sotomayor has a dissent joined by Ginsburg.

Breyer says he and Kagan “focus primarily on a threshold issue. “The proclamation on its face is neutral and is of a kind that other presidents have issued,” he says. “But the many statements referred to in the respondents’ briefs, including those of the president, suggest the contrary. So which is it?”

Francisco, who barely moved a muscle as he leaned forward to listen to the chief justice, now is sitting back in his chair in a more relaxed posture.

Breyer continues for several minutes, concluding, “If we must decide the basic issue now, we would find the evidence, including the presidential statements set forth in Justice Sotomayor’s dissenting opinion, sufficient to set the proclamation aside.”

There is another pause before Sotomayor begins summarizing her dissent. By now, it is well past 10:30, and the courtroom is silent and somber.

“The United States of America is a nation built upon the promise of religious liberty,” Sotomayor says. “The court’s decision today fails to safeguard that fundamental principle.”

She provides her own catalogue of the president’s comments about Muslims.

“Despite numerous opportunities to do so, President Trump has never disavowed any of these hurtful statements,” she says. Unlike the majority, she says, “I am unwilling to throw the establishment clause out the window at the mere mention of a national-security concern.”

As alluded to by Roberts, Sotomayor makes several points about Korematsu. She cites Justice Frank Murphy’s dissent in the case for the view that the exclusion order was rooted in dangerous stereotypes about, among other things, a particular group’s supposed inability to assimilate and desire to harm the United States.

“Today, the court takes the important step of finally overruling Korematsu,” Sotomayor says regarding the chief justice’s words about the 1944 decision. (Whether the court has actually done that will be debated in the coming hours.)

“This formal repudiation of a shameful precedent is laud­able and long overdue,” Sotomayor says. “But it does not make the majority’s decision here acceptable or right.”

She sums up with a line that does not appear in her written dissent,

“History will not look kindly on the court’s misguided decision today,” she says. “Nor should it.”

When she is done, the chief justice is ready to announce that the end is in sight.

“This court will next sit tomorrow morning at 10 o’clock,” he says. “And at that time we will announce all remaining opinions ready during this term of the court.”

Recommended Citation: Mark Walsh, A “view” from the courtroom: The “court of history” is in session, SCOTUSblog (Jun. 26, 2018, 4:47 PM),