We’re now past Memorial Day, and almost into June, so we are in the home stretch of October 2018 term.

Today, like many days this term, the big news will come at 9:30 a.m. with the release of orders. The per curiam decision in the abortion-related case Box v. Planned Parenthood of Indiana and Kentucky Inc. will dominate the attention of court-watchers more than anything that occurs in the courtroom today. Among other characteristics, the opinion features some sharp elbows between Justices Clarence Thomas, in his lengthy concurrence, and Justice Ruth Bader Ginsburg, who has written a solo opinion concurring in part and dissenting in part.

Ginsburg’s dissent “makes little sense,” wrote Thomas. One of Thomas’ footnotes “displays more heat than light,” wrote Ginsburg. But two justices can be on polar opposites of one case, but stand together on another the same day, as we will see.

The news that Attorney General William Barr will be presented to the court this morning by Solicitor General Noel Francisco does not fill the press rows with anyone besides the usual suspects who prefer to hear opinions in the courtroom.

Barr arrives a few minutes before the start of court at 10 a.m., dressed in formal morning attire and accompanied by Francisco and several other members of the solicitor general’s office.

The bar section and the public gallery are pretty full today.

When the court takes the bench, Justices Stephen Breyer and Samuel Alito are absent. We have no word on their whereabouts today.

Chief Justice John Roberts recognizes Francisco, who moves to the lectern and says, “Mr. Chief Justice, and may it please the court. I have the privilege to present to the court the 85th Attorney General of the United States, the Honorable William P. Barr of Virginia.”

Barr moves to the lectern, and the chief justice says, “General Barr, on behalf of the court, I welcome you back as the chief legal officer of the United States and as an officer of this court. We recognize the very important responsibilities that are entrusted to you. Your commission as Attorney General of the United States will be noted in the records of the court. We wish you well in the discharge of the duties of your new office.”

Barr, who has had plenty to say from his own press room at the Justice Department or as a somewhat reluctant witness before congressional committees regarding certain high-profile matters, has only a few words this morning: “Thank you, Mr. Chief Justice.”

When Roberts moves on to announce that Justice Sonia Sotomayor will have the first opinion of the day, in Smith v. Berryhill, Barr slips out a side courtroom exit. He apparently has to get back to his very important responsibilities.

Sotomayor quickly summarizes the unanimous opinion in Smith, which reverses the U.S. Court of Appeals for the 6th Circuit and holds that an appeals council’s dismissal of a Social Security claim on timeliness grounds when the claimant has had an administrative law hearing qualifies as a final decision “made after a hearing” so as to allow judicial review under the Social Security Act.

Sotomayor makes sure to express appreciation to Deepak Gupta of Washington, who defended the judgment below as an amicus curiae, since the solicitor general’s office supported reversal in the case it had won below.

Thomas is up next with Home Depot U.S.A Inc. v. Jackson, which like the first case is in the procedural category and leads to some glazed eyes in the courtroom. Thomas has joined with the court’s liberal bloc to hold that neither of two relevant provisions of federal law allows a third-party counterclaim defendant in a class action to remove the case to federal court. Thomas’ majority opinion is 11 pages, while Alito’s dissent is 26 pages.

The chief justice has the final opinion of the day, in Nieves v. Bartlett, about a First Amendment retaliatory-arrest claim against two police officers.

Roberts quickly livens up the courtroom with a reference to the annual “Burning Man” festival, the annual late summer event in a remote area of Nevada, and then pivoting to “Arctic Man,” which is “an Alaskan festival that is its polar opposite.”

The gallery chuckles as Roberts describes how the remote community of Paxson, Alaska, is transformed as 10,000 people descend on the area for an event known for “both extreme sports and extreme alcohol consumption.”

He summarizes the much-disputed facts of Arctic Man participant Russell Bartlett’s run-ins with the police in 2014, which included Bartlett being arrested and charged with disorderly conduct and resisting arrest, for which he was ultimately not prosecuted. Bartlett claims he faced a retaliatory arrest for refusing to speak with one officer.

The court holds that because there was probable cause to arrest Bartlett, his retaliatory-arrest claim fails as a matter of law. Roberts discusses the frequent tense situations faced by police officers in which “any inartful turn of phrase or perceived slight during a legitimate arrest could land an officer in years of litigation.”

The chief justice highlights a qualification to the rule for circumstances when officers have probable cause to make an arrest but usually exercise their discretion not to, such as with jaywalking. If someone who has been vocally complaining about police conduct is arrested for jaywalking, “it would seem insufficiently protective of First Amendment rights to dismiss the individual’s retaliatory-arrest claim” because there was probable cause.

But as for aggressive, drunken conduct like that alleged in this case, Roberts says, “that will get you arrested, even at Arctic Man.”

When court concludes after bar admissions, the seven justices present retreat behind their curtain, with Thomas making sure Ginsburg makes it safely down the few steps behind the bench. It’s a courtesy he has extended throughout the term, even when the two are delivering sharp elbows in print.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, was counsel to the petitioner in Home Depot. The author of this post, however, is not affiliated with the firm.]

Posted in Home Depot U.S.A. Inc. v. Jackson, Smith v. Berryhill, Nieves v. Bartlett, Box v. Planned Parenthood of Indiana and Kentucky Inc., Featured, What's Happening Now

Recommended Citation: Mark Walsh, A “view” from the courtroom: Running hot and cold, SCOTUSblog (May. 28, 2019, 5:08 PM), https://www.scotusblog.com/2019/05/a-view-from-the-courtroom-running-hot-and-cold/