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A “view” from the courtroom: The daily grind

As the first substantive day of the impeachment trial wore on, and on, from yesterday into the early morning hours of today, one cable-TV pundit suggested that Chief Justice John Roberts might not feel compelled to attend today’s oral argument in Espinoza v. Montana Department of Revenue, an important case about government aid to religious education.

That seemed most unlikely, although other thoughts went through my mind. One was a remark by the late Justice Antonin Scalia during arguments over the Affordable Care Act in 2012.

“What happened to the Eighth Amendment?” Scalia said during that case, suggesting it was a form of cruel and unusual punishment to require the court to read the entirety of the lengthy statute.

The other was a 2007 episode of “The Office,” in which Michael Scott took a second job that threatened to interfere with his main one as the manager of the Scranton, Pa., office of Dunder-Mifflin. Like Scott, the chief justice is taking public transportation to his outside gig. For Scott, it was a city bus to his job at a call center; for Roberts, it is a government car from the court to the Capitol. Like Scott, the chief justice had “a really rough night,” and his boss can back him up on that.

And like Scott, the chief justice would surely assert that his other job will not affect his work at his main one. But although Scott had trouble completing his PowerPoint presentation for Dunder-Mifflin, Roberts can be expected to keep up with his work on opinion drafts and other court duties. It helps a bit that after today, and a short nonargument session on Monday, there is a four-week recess at the court.

There are a few more Supreme Court connections to the impeachment trial that bear mentioning. One is that when Jay Sekulow, one of the president’s defense attorneys, began speaking Tuesday in his booming voice, it brought up a memory of the time that Sekulow was admonished by then-Chief Justice William Rehnquist to dial it down a notch.

During oral argument in 1996 in a case involving blockades of abortion centers, Schenck v. Pro-Choice Network of Western New York, Sekulow began his defense of abortion protestors in his usual booming way.

“Mr. Sekulow, I think we can hear you quite well if you were to lower your voice a little,” Rehnquist said.

“Yes, Mr. Chief Justice,” Sekulow replied.

Finally, SCOTUSblog and NBC News sketch artist Art Lien will be rushing from the courtroom again today across the street to the Senate, where he is sketching the trial for The New York Times. Lien also sketched the impeachment trial of President Bill Clinton in 1999, and he pointed out that one day he was surprised to scan the visitor’s gallery and find Justice Anthony Kennedy taking in the proceedings. Of course, Art sketched him.

Will any of the chief justice’s colleagues be so bold as to drop in on this impeachment trial?

Education Secretary Betsy DeVos seated in courtroom (Art Lien)

The courtroom is filling up fast this morning. Secretary of Education Betsy DeVos is here, seated in the front row of the public gallery with some aides from her department. She has been an advocate of school choice and her boss, President Donald Trump, has urged a federal tax credit for contributions to scholarship programs. The federal proposal probably faces more political than legal hurdles. The case today asks whether a Montana constitutional prohibition on aid to religion violates the free exercise of religion rights of parents who want to use scholarships stemming from the tax credit at religious schools.

Three parents sued the state revenue department after it issued a rule that said the scholarships could not be used at religious schools because that would violate the state constitutional bar on aid to religion. The Montana Supreme Court invalidated the entire tax credit program based on the state constitutional amendment.

Two of those parents are here today with their children who have received their scholarships (thanks to a stay of the state supreme court ruling). Kendra Espinoza is here with her daughters Naomi, an 8th grader, and Sarah, a 6th grader. Jeri Anderson is here with her daughter, Emma, a 6th grader. They are seated close to the back of the public gallery, not the usual placement for parties to the case.

The girls attend Stillwater Christian School in Kalispell, Mont. I went to visit the school in September to preview the case for another news outlet. The timing was on the early side, considering the argument was not until today. But I wanted to get ahead of the competition, and the fact that Kalispell is near Glacier National Park, which starts to shut down in early fall, may have been a factor. (The park received about four feet of snow just a few weeks after I was there.)

There are other schoolchildren here today, including a group from the Closeup Foundation. And just before arguments begin, a group of a dozen or so students wearing identical shirts that say “Annies” arrives and takes seats in the front row of the public section. It turns out they are from St. Anastasia School in Newtown Square, Penn.

Jeanne Allen, a longtime advocate for broader school choice and the CEO of the Center for Education Reform, is in a back row of the courtroom.

U.S. Sen. Steve Daines of Montana, a Republican who signed onto an amicus brief in support of the parents, is here today.

Brent Walker, the retired executive director of the Baptist Joint Committee for Religious Liberty, is in the bar section. The committee filed an amicus brief co-written by Steven Green, a professor of law, history and religious studies at Willamette University in Salem, Ore., in support of the state. Green isn’t here today, but he will be name-checked during the argument for his scholarship in this area.

Another leading scholar in the field who has supported the parents, Douglas Laycock of the law school at the University of Texas in Austin, also is not here but will get a shoutout from Justice Brett Kavanaugh.

Also here supporting the state is Mae Nan Robinson Ellingson, who at age 24 in 1972 was the youngest delegate to Montana’s constitutional convention that year. She signed an amicus brief that says the convention was not animated by anti-religious bias of the 19th century when it adopted a no-aid clause, but were seeking to protect religious institutions from government interference.

Amy Howe has this blog’s main account of the Espinoza argument, which lives up to its billing as one of the top cases of the term. The topics veer from James Madison to the Irish potato famine to 19th-century anti-Catholic sentiment to Montana’s 1972 state constitutional convention.

And no justice would miss the discussion. When the clock strikes 10 a.m., Roberts takes his seat and looks as fresh as on any other court day. He asks probing questions of both sides. One might have expected that he would be loading up on coffee after last night, but the chief justice is not much of a beverage drinker on the bench, in contrast to several of his colleagues.

Yesterday, there were two arguments, which ran past noon and cut into the hour the chief justice had between court and his Senate duties. Today, the lone argument ends at 11:08 a.m., giving him plenty of time for his commute to his second job.

For Roberts, it’s just another day at The Office.

Recommended Citation: Mark Walsh, A “view” from the courtroom: The daily grind, SCOTUSblog (Jan. 22, 2020, 5:58 PM),