Today is the last day of oral argument for the term, capping a very busy week for the justices.
On Tuesday evening, six justices and their spouses attended the White House state dinner for King Charles III and Queen Camilla. It was the six Republican-appointed justices. We don’t know for certain that the president didn’t also invite the three Democratic-appointed justices, but to paraphrase a bit used by Bill Maher on his HBO show, we just know it’s (probably) true that he didn’t.
Indeed, when Politico reported a tip that Justice Samuel Alito was spotted in a Georgetown formalwear shop, the news outlet had framed it as part of its discussion of the White House Correspondents’ Association dinner. I thought the chances of Alito attending that event were quite slim. If the tip was true, it seems more likely he was getting fitted for white tie and tails, the dress code for men at the state dinner.
And earlier on Tuesday, retired Justice Stephen Breyer attended the king’s speech to a joint session of Congress, where he was able to get Charles’ attention for a quick word as the king left the chamber. Perhaps it was to thank him for the reference to how many times the Supreme Court has mentioned the Magna Carta. (The king cited figures from the Supreme Court Historical Society, which sent out an appreciative email today.)
In the packed courtroom this morning, Jaime Santos of Goodwin Proctor’s Supreme Court and appellate practice is in the bar section near me, and we speculate about which decisions might be coming down. She predicts that Louisiana v. Callais, the major Voting Rights Act case, will be the one. I say no, not on the same day as the consolidated cases in Mullin v. Doe about whether then-Secretary of Homeland Security Kristi Noem violated federal law when she terminated temporary protected status designations for Haiti and Syria. (This will not turn out to be my day to play the lottery.)
The justices take the bench, none wearing formalwear. Chief Justice John Roberts announces that Justice Neil Gorsuch has the opinion for the court in First Choice Women’s Resource Centers v. Davenport.
Gorsuch is pretty quick with his summary of the decision that the faith-based pregnancy center has established a present injury to its First Amendment associational rights to confer standing to challenge a New Jersey subpoena demanding documents about its donors.
“Today, we unanimously reverse,” he says, revealing the vote count near the very beginning.
Next, and much to my surprise, the chief justice announces that Alito has the opinion for the court in Callais, which holds that the Voting Rights Act did not require Louisiana to create an additional majority-minority congressional district, and that no compelling interest justified the state’s use of race to create its redistricting map.
Alito cites the “complicated history” of the case, adding, “I will try not to burden you with too many details.”
But while his preference for opinion summaries is normally quick and concise, not so here. Rather, he goes on for about 12 minutes, explaining what in his view the ruling decides and does not decide.
He then spends the last few minutes responding to the dissent, an almost sure sign that an oral dissent is coming. And it does: After Alito announces the lineup, the justice on Alito’s left, Elena Kagan, begins the first oral dissent of the term.
With this decision, she says, “this court’s effort to dismantle and, indeed, destroy the Voting Rights Act is complete.” The Voting Rights Act was “one of the most consequential, efficacious, and amply justified exercises of federal legislative power in our Nation’s history,” she continues, quoting from Shelby County v. Holder, which dealt a prior blow to the Voting Rights Act. “It was born of the literal blood of Union soldiers and civil rights marchers.”
She goes on for 14 minutes, concluding that the majority’s gutting of Section 2 puts the achievement of African-Americans attaining public office in record numbers in great peril.
Modifying the final words of her dissent to encompass her colleagues Sonia Sotomayor and Ketanji Brown Jackson, Kagan says, “We dissent because Congress elected otherwise. We dissent because the court betrays its duty to faithfully implement the great statute Congress wrote. We dissent because the court’s decision will set back the foundational right Congress granted of racial equality in electoral opportunity.” She does not say she is dissenting “respectfully.”
When Kagan is finished she leans back, and the chief justice moves on to the admission of a few individual bar members (no groups today) before calling the TPS cases, which concern whether the Trump administration acted properly in revoking temporary protected status for Haitian and Syrian nationals.
The tension will hang in the air throughout the morning, as U.S. Solicitor General D. John Sauer seeks to defend the TPS determinations by now-former DHS secretary Noem.
Early on, Sotomayor asks a prolonged series of questions, leading the chief justice to try another tactic in what seems to be his efforts to rein her in a bit.
“Counsel, excuse me,” Roberts says, interrupting Sotomayor. “You said a moment ago that there were three points in response to my colleague’s question. Could you just briefly mention those?”
But this only leads Sotomayor to sharpen up her questioning. Discussing possible motivating factors and potential discriminatory purposes, she raises past remarks by President Donald Trump, telling Sauer, “Now we have a president saying at one point that Haiti is a ‘filthy, dirty, and disgusting S-hole country.’ I’m quoting him. And where he complained that the United States takes people from such countries instead of people from Norway, Sweden, or Denmark, … [while] he declared illegal immigrants, which he associated with TPS, as poisoning the blood of America.”
Sauer does his best to try to set aside comments by Trump and Noem cited by Sotomayor or the challengers. “All the statements that they cite as to the secretary and as to the president – obviously, there’s an issue there about which one you’re going to weigh more heavily – none of them, not a single one of them, mentions race or relates to race in any way,” he says.
Sauer has a momentary lapse when the chief justice thanks him at the end of his regular argument time, and he quickly sits down. But there is still the seriatim round, and several justices pass before Roberts turns to Sotomayor, who has another question.
Sauer scurries back to the lectern, saying “I’m sorry.”
The chief justice says, “Party’s over. No, you’ve got to stay there.”
“I’m very sorry,” Sauer says.
The debate around the president’s comments will get either more graphic or just more uncomfortable as the argument goes on. Geoffrey Pipoly, representing the Haitian TPS holders, will open his argument with an unexpurgated citation of Trump’s “s-hole” comment.
Alito, questioning the challengers’ view that all countries for which TPS designations have been canceled were predominantly non-white, tells Pipoly, “I don’t like dividing up the people of the world arbitrarily into three racial groups, but you say they’re all non-white. … Do you think that if you put Syrians, Turks, Greeks, and other people who live around the Mediterranean in a lineup, do you think you could say those people are – that all of them, are they all non-white?”
After some back and forth on that, Alito asks, “How about southern Italians?” The topic is fraught with racial, or ethnic, tension, yet Alito’s reference to his own heritage prompts some laughter in the courtroom. Even Alito is smiling as the laughter seems to release some of the tension surrounding this fraught topic. Pipoly replies, “Certainly 120 years ago when we had our last wave of European immigration, southern Italians were not considered white. So I think our concept of these things evolves over time.”
Thankfully, the argument soon veers back to more mundane topics such as the Administrative Procedure Act. The case, which started at 10:35 a.m. after the prolonged opinions of the day is submitted at 12:21 p.m. Not too long for such a big case. The second case for argument today, the patent dispute Hikma Pharmaceuticals USA Inc. v. Amarin Pharma Inc. (which I did not attend), clocks in at a tidy one hour and one minute.
From here on out, it’s just orders and decisions.