Closing the book on the term

It was a bit of a shock on Thursday when Chief Justice John Roberts announced at the end of the session that the court would next sit on Friday and “at that time we will announce all remaining opinions ready during this term of the Court.”

With six significant cases outstanding, that would make for one heckuva final day, everyone seemed to agree.

This morning, both a participant on the SCOTUSblog live blog and a colleague in the press room specifically ask me to keep my eyes open for any spouses of the justices, namely Virginia Thomas or Martha-Ann Alito. They are married to Clarence Thomas and Samuel Alito, respectively, the justices deemed most likely to be ready to retire. But there has been a fair amount of cold water thrown on retirement odds for this summer. When Justice Anthony Kennedy retired in 2018, his wife, Mary, their children and grandchildren showed up in the courtroom on the last day of the term. That was a bit of a giveaway to the announcement that would not become official until later that day.

When I arrive in the courtroom, there are no spouses in the VIP box, and none will arrive. Justice Brett Kavanaugh’s parents are here, but they frequently attend court sessions, especially when Kavanaugh has an opinion to announce.

There are two retirees here, though. Taking seats in the cushy VIP chairs, along with Reporter of Decisions Rebecca Womeldorf and a couple of other staff regulars, are two longtime court staff members who retired within the past year and will be recognized by the chief justice at the end of today’s session, as is customary. One is Deputy Clerk Jeffrey Atkins, who retired in November from the clerk’s office after 33 years of court service. The other is Chief of Police Paul Coleman, who retired in January after 29 years as a court police officer.

Because the police chief’s office is near the press room, it was not unusual for reporters to encounter Chief Coleman in the hallway, where he always had a friendly disposition. There were so many things we would have liked to ask him, but we didn’t. Coleman also served for a time as the courtroom security supervisor, so he has had his share of hours in this room.

The public gallery is full, presumably with people who waited in line outside, as it seems the court did not offer its online tickets for these late-scheduled opinion days (or non-argument days, in the court’s parlance).

The bar section is nearly half-full today after being virtually empty the past two opinion days. The solicitor general’s office contingent is led today by Principal Deputy SG Hashim Mooppan, who is joined by Sarah Harris (another Principal Deputy SG), Deputy Solicitors General Malcolm Stewart and Eric Feigin, as well as a few assistants. Once again, Solicitor General D. John Sauer is not here for what will turn out to be a pretty big day for his office.

When the justices take the bench, Justice Neil Gorsuch is absent. Roberts announces that Justice Amy Coney Barrett has the opinion in Trump v. CASA. This is a bit of a jolt, as that is one of the biggest of the six remaining cases and one that some expected the chief justice might announce.

For this case from the emergency docket about President Donald Trump’s birthright citizenship executive order and the universal injunctions that are blocking it, Barrett makes clear right away that the court is ruling on the injunctions and not the merits of the executive order.

Barrett will go on for about 10 minutes about the “flexible” but not “freewheeling” equitable authority of the federal courts, touching on the High Court of Chancery of England, bills of peace, and a 1999 decision known as Grupo Mexicano, or just “Grupo,” as she puts it.

After Barrett announces the 6-3 lineup for a decision curtailing universal injunctions, there is a brief pause before Justice Sonia Sotomayor begins reading from her dissent, which is joined by Justices Elena Kagan and Ketanji Brown Jackson.

She early on refers to the majority decision as “shameful.” Though this is only a slight variation of her use of “shamefully” in the written dissent, both Roberts and Alito quickly turn their heads toward Sotomayor at her use of that word.

She discusses birthright citizenship more than Barrett mentioned it, and her view that the decision limiting universal injunctions will be an “open invitation” for the administration to bypass the Constitution.

“The other shoe has dropped on presidential immunity,” Sotomayor says, a line that does not seem to appear in her written dissent.

But other vivid words and phrases she uses from the bench are in the dissent.

“By stripping all federal courts, including itself, of [equitable] power, the court kneecaps the judiciary’s authority to stop the executive from enforcing even the most unconstitutional policies,” she says.

And, “Fortunately, in the rubble of its assault on equity jurisdiction, the majority leaves untouched one important tool to provide broad relief to individuals subject to lawless government conduct: Rule 23(b)(2) class actions for injunctive relief.”

At 10:30, after having spoken for 19 minutes, she says, “I, along with Justice Kagan and Justice Jackson, dissent.”

The chief justice quickly moves on to the second case ready for decision, Kennedy v. Braidwood Management. Kavanaugh delivers a crisp summary of the 6-3 ruling that the members of the U.S. Preventive Services Task Force are inferior officers whose appointment by the secretary of Health and Human Services is consistent with the Constitution’s appointments clause.

Kavanaugh’s parents listen intently, but NPR’s Nina Totenberg exits the press section, evidently deciding that the CASA decision requires her immediate attention.

Kagan is up next with Federal Communications Commission v. Consumers’ Research, in which a 6-3 majority rejects the challengers’ arguments that the funding mechanism of the Universal Service Fund providing subsidized telecommunications services for some low-income customers, rural hospitals, schools, and libraries violates the non-delegation doctrine.

The arguments by Consumers’ Research are “incorrect,” Kagan says, and the U.S. Court of Appeals for the 5th Circuit, which last summer declared the funding scheme a “misbegotten” and unconstitutional tax, was “wrong.”

Harris, who carried on the FCC’s arguments first made under the Biden administration, seems pleased by this victory.

Alito is up next with another of the term’s big cases, Mahmoud v. Taylor, about LGBTQ+ storybooks in the nearby Montgomery County, Maryland, school district. Religious parents seek to remove their children from such lessons, which the school district initially allowed but later reversed itself, citing too many such opt-outs and the administrative complications those were causing.

Alito quickly refers to the “very young children” who were the focus of the five books that were being used as the case came to the Supreme Court. He discusses some of the guidance given to teachers by the district, meant to “disrupt the children’s thinking about sexuality and gender.”

At oral argument, Alito and Sotomayor had gone back and forth about one of the storybooks. “We could have a book club and have a debate about how Uncle Bobby’s Marriage [sic] should be understood,” Alito said then.

Today on the bench, Alito focuses on another of the five current titles for his book club presentation, Born Ready. This book is about a character named Penelope who is initially treated as a girl but says, “inside, I’m a boy.”

This is a discussion about gender to which “the parents and many Americans object,” Alito says.

He goes on longer than he usually does in his opinion summaries, including enough rebuttals to “the dissent” that I become convinced that there is another oral dissent coming today.

And I am correct. Sotomayor discusses the effect the majority opinion will have on “the very essence of public education.”

And for her book club discussion, she sticks with Uncle Bobby’s Wedding, and her understanding of the young character Chloe’s reaction to her uncle’s plans to marry another man. (An appendix to her dissent seems to reprint the entire book.)

Sotomayor also expresses her worries that the right of parents to veto public school curriculum materials may quickly grow to “books on evolution and interfaith marriage, and history may be next.”

Once again, she says, “I, along with Justice Kagan and Justice Jackson, dissent.”

We are now well past 11 a.m., with two cases to go. But the pace will quicken.

Thomas has the opinion in Free Speech Coalition v. Paxton, as just about everyone thought he might based on opinion assignments from the January sitting. The court rules 6-3 that a Texas law requiring age verification for adult-content websites triggers and survives intermediate scrutiny – a test more stringent than what the court of appeals had applied, but less stringent than what the challengers had argued should be applied – under the First Amendment because it only incidentally burdens the protected speech of adults.

Thomas’ summary is short, including a use of his favorite line, “in an opinion filed with the clerk today, we affirm” the 5th Circuit.

The chief justice announces that “with respect to Louisiana v. Callais,” a challenge to Louisiana’s adoption of a congressional map containing a second majority-Black district, it is being restored to the argument calendar for next term, with more orders to come about what questions the parties should address. Thomas dissents, but not from the bench.

Roberts then launches into the traditional closing, including that the court “has acted upon all cases submitted to the court for decision this term.” The one bit of news is that “disposition of items scheduled for conference yesterday will be reflected on order lists that will be released at 9:30 Monday morning, and 9:30 Thursday morning.”

The court had a regularly scheduled conference yesterday, but also appeared, based on some cases on the docket that were likely holds for today’s decisions, to have added its traditional clean-up conference to yesterday’s agenda as well. Sometimes the court releases its clean-up orders on the same day as its final opinions, so it is a relief on this busy opinion day that those orders will come next week.

Roberts moves on to thanking court employees, the Supreme Court bar, and the mentioned retirees, before he turns to Marshal Gail Curley, who announces that court is “adjourned until Monday, Oct. 6, at 10 o’clock” before banging her gavel and the justices disappear behind their red velvet curtain.