A peek at the merits

Today the court will hear arguments in Trump v. CASA and its consolidated cases, plucked from the emergency docket for oral arguments about nationwide injunctions and the president’s executive order on birthright citizenship.
 
Before the arguments get started, Chief Justice John Roberts has some recognition planned for the late Justice David Souter, who died last week at age 85.
 
As things turn out this morning, I will have my own unorthodox and unplanned tribute to Souter, in particular the day in January 1996 when Souter was late to the bench for an oral argument. I am late to court today because of the growing rush-hour traffic (thanks to return-to-office orders for federal employees) and yet another demonstration right on my route to the court.

In Souter’s case, it was a January 1996 snowstorm, the kind that shut down most of official Washington but not the court, which proceeded with arguments in three cases. I was present for at least one of the cases, having taken the Metro to Union Station and then trudged up the hill through about a foot of snow to the court. I don’t think I was there yet for the first case, but Joan Biskupic, then with The Washington Post, wrote of Souter arriving after arguments had begun.
 
“He set out hours earlier in his own sedan on the city streets but got stuck and eventually had to be retrieved by the court police,” Biskupic wrote. “When Souter quietly slipped into his seat at the mahogany bench — six minutes into oral arguments on an arcane railroad liability dispute — he seemed a bit sheepish. He and Justice Sandra Day O’Connor discreetly exchanged notes. It is not known what was said, but it would not be surprising if the New Hampshire native took a ribbing for succumbing to the snow.”
 
Today, I am a bit sheepish myself as I make it to the court building just in time for the opinions that will precede today’s oral arguments. I’m too late for my preferred early arrival in the courtroom to scope out who is in attendance, so I decide to stay downstairs with the other reporters who prefer to wait for opinions in the Public Information Office before heading upstairs to the arguments. There is courtroom audio (not part of the livestream for the general public), and it is there we hear the chief justice open with his tribute to Souter.
 
He notes the memorial draping on the door of the courtroom, then summarizes Souter’s New Hampshire youth, including that he was voted “Most Likely to Succeed,” “Most Sophisticated,” and “Most Literary” of the 180 members of the Concord High School Class of 1957.
 
The chief goes on to discuss Souter’s career in public service, including his “cup of coffee, as they say in baseball” on the 1st Circuit before President George H.W. Bush nominated him for the Supreme Court. Roberts says Souter was a “treasured colleague and friend” who was “was beloved throughout our building for his wisdom, humility, and simple decency.”
 
He retired after 19 years of service, then loaded up his Volkswagen and headed back to New Hampshire for good. “As his friend Tom Rath observed, Justice Souter viewed Washington as ‘a tour of duty rather than a destination,’” the chief justice says.
 
After Roberts concludes his tribute, he announces that Justice Elena Kagan has the opinion in Barnes v. Felix, about a claim of excessive force by a police officer who fatally shot 24-year-old Ashtian Barnes during a traffic stop. When it becomes clear that is the only opinion, there is a dash up the stairs to the courtroom for the argument.
 
Even arriving later than usual, I can see that the packed courtroom includes Ashley Kavanaugh, the wife of Justice Brett Kavanaugh, in the justices’ box. Jimmy Hoover of the National Law Journal will later relate that there is another luminary in the box today — Laura Ingraham of Fox News, former law clerk to Justice Clarence Thomas.
 
I can see that the alcoves reserved for the current law clerks seem pretty full today. One of these terms the law clerk class will complain that they didn’t get anything unusual like their predecessors of the last four or five terms have.
 
Deputy Solicitor General Edwin Kneedler, who received a standing ovation after the chief justice recognized his impending retirement last month as he argued his last case, is not yet retired and is here today in the front row of the bar section. 
 
Today’s two-and-a-half-hour arguments are pretty well covered by SCOTUSblog, both by Amy Howe’s story and the perhaps first ever live blog that offered commentary on an entire argument.
 
Here, though, are just a few more observations that may not have been as evident to someone who was only able to listen. 
 
It is U.S. Solicitor General John Sauer’s second argument in that post, and something I notice today is that he is a bit animated. He sometimes steps back from the lectern while still speaking, and he gestures a lot with his hands. 
 
Justice Sonia Sotomayor will engage him at length early in the argument, in a way that calls to mind how she took on Trump’s first-term solicitor general, Noel Francisco, seemingly trying to filibuster away some of his time. Roberts takes a couple of stabs at stealing the floor from Sotomayor. “Can I hear the rest of his answer?” he says. And finally, he more forcefully interrupts her by saying, “Could I, counsel?” before asking his question.
 
The biggest question going into today was whether this argument would be confined to universal injunctions or would veer into the merits of whether ending birthright citizenship is unconstitutional. Throughout the argument, there are multiple references to courts, including the Supreme Court, taking a “peek at the merits” as they weigh injunctive relief.
 
At the end of the long argument, there is plenty for the justices, as well as countless reporters, livestream commentators, interested parties outside the court building, and others to chew over. At least rush-hour traffic has cleared as we mull what exactly the justices will decide in this case.