Next week, what is being billed as the biggest fireworks show ever in Washington, D.C., will help celebrate the nation’s 250th birthday. Yet the Supreme Court will offer its own pyrotechnics this morning with a dramatic and possibly unprecedented rebuttal by a majority opinion author to an impassioned dissent from the bench.
But first, after being out of town and missing Tuesday’s session, I arrive at the court this morning and decide to check the cafeteria menu, in case a lengthy opinion release spills into the lunch hour. Today’s special is “Garlic Parmesan Wings.” Yesterday’s special of a “Hawaii Five-O Burger” – “Caramelized Onion, Griddled Pineapple Slice, Bacon, Lettuce, Tomato, Pepper Jack Cheese and Sriracha Aioli” – is a reminder that the big Hawaii gun case, Wolford v. Lopez, is among the 12 decisions we’re expecting in the next few days.
In the courtroom, it is a bit of a relief that the bar section is nearly empty; there will be no bar admissions today even though this is the last regularly scheduled court session of the term. (Tuesday was the first bonus day and there will be more.) The court abstains from that in-court procedure after the third week of June. This means there will be no delay between the moment opinions are done and when Marshal Gail Curley announces the next day for court. (Chief Justice John Roberts makes the announcement if this is the penultimate opinion day.)
In the justices’ guest box, Justice Brett Kavanaugh’s mother, Martha, is in attendance, as she is with some frequency.
The U.S. solicitor general’s office contingent is led by Principal Deputy Solicitor General Sarah Harris and several other top deputies and assistants. Solicitor General D. John Sauer is not here today.
When the justices take the bench, all are present, and Roberts announces that Kavanaugh has the opinion in Monsanto v. Durnell. He concisely summarizes the court’s holding that the Federal Insecticide, Fungicide, and Rodenticide Act expressly pre-empts a Missouri man’s state-law failure-to-warn claim that would require Monsanto to add a cancer warning to its glyphosate-based pesticide Roundup.
Kavanaugh notes that the Environmental Protection Agency’s view that glyphosate is not likely to cause cancer in humans is shared by regulators in Canada, Australia, Japan, and the European Union. My mind goes to the World Cup, as those three countries are vying to move on the knockout stage, while thankfully the EU is not confined to a single team.
Harris argued in support of Monsanto and seems pleased with this result. Kavanaugh announces the somewhat unusual lineup that includes a concurrence by Justice Clarence Thomas and a dissent by Justice Ketanji Brown Jackson, joined by Justice Neil Gorsuch.
The chief justice next announces that “Justice [Samuel] Alito has the opinion in three of our cases this morning.”
It’s not unheard of for a justice to have two majority opinions in one day. Three is a little more rare, but Alito has been behind his colleagues in completed opinions, which is not necessarily his fault but could be due to the concurring and dissenting justices.
Alito’s first serving is a Hawaii Five-O Burger: Wolford.
He is concise with a summary of the holding that Hawaii’s law prohibiting licensed concealed-carry permit holders from carrying handguns on private property open to the public without the property owner’s express authorization violates the Second and 14th Amendments.
He spends a few moments explaining why the decision has rejected Hawaii’s proffered historical analogues for justifying its gun regulation, with special attention to the state’s citation of an 1865 Louisiana law that generally barred the carrying of guns on premises or plantations of citizens. That law was enacted as part of the post-Civil War “Black Codes” aimed to perpetuate the subjugation of Blacks. Alito calls it “strange indeed” that Hawaii would rely on “this racist law.”
Alito announces a lineup that includes a concurrence by Justice Amy Coney Barrett, joined by Thomas and Gorsuch in part, and a dissent by Justice Ketanji Brown Jackson, joined by Justice Sonia Sotomayor, with a separate dissent by Justice Elena Kagan.
Alito moves right along to his second case, Mullin v. Al Otro Lado, which holds that an “alien” standing in Mexico does not “arrive” in the United States by attempting, and failing, to set foot in this country but only when he crosses the border. The Immigration and Nationality Act thus neither entitles such a person standing in Mexico to apply for asylum nor requires an immigration officer to inspect him.
This lineup includes a concurring opinion by Thomas, as well as a dissent by Sotomayor, joined by Kagan and Jackson, and a separate dissent by Jackson.
Alito pauses, and I am looking down jotting in my notebook ready for him to move on to his third case when another voice sounds from the bench.
Sotomayor, it quickly becomes clear, is delivering an oral dissent in this case, and she opens with something from page 29 of her 35-page opinion, the story of the M.S. St. Louis, the ship that left Nazi Germany in 1939 with some 900 Jewish refugees but was turned away in Cuba, Miami, and Canada before returning to Europe, where 250 of the refugees died in the Holocaust.
This led, after World War II, to a treaty and federal laws meant to avoid such a fate for asylum-seeking refugees. But under the practice at issue in this case, U.S. immigration officers “physically block” asylum seekers just outside ports of entry, Sotomayor says.
“Turn the ship back,” she states, hammering home her point.
She takes issue with the majority’s conception of “arrive,” saying it is perfectly logical to say you have arrived in Washington, D.C., when you have landed at “Reagan National Airport,” which is in Virginia. (She uses its “DCA” code in the opinion, but adds from the bench that “I always think I’m still in D.C.” while at that close-proximity airport.)
Sotomayor also discusses the federal “metering policy” that limited the number of arriving aliens who would be inspected at ports of entry and how it has led to makeshift camps on the Mexican side of the U.S. border and other “dire humanitarian conditions.”
As Sotomayor goes on for 10 minutes, longer than the total of Alito’s first two opinion summaries, he at times leans back in his chair and sips from his water cup. When she wraps up, he leans forward and we expect him to move on to his third opinion.
But first, he has a response.
“There is much that I would have added to my bench statement had I known there would be a dissent read,” he says. This causes heads to turn in the courtroom. He goes on with a short substantive retort to Sotomayor, paraphrasing his written opinion’s point that “the government’s policy merely delayed entry by some aliens as a way of improving a situation that both interfered with the proper conduct of inspection and created unsanitary, inhumane, and sometimes dangerous conditions at ports of entry.”
He tells the audience to read the opinion and says, “I will move on to the next case.”
There is some discussion afterwards in the press room, where those who listened to the audio piped into the Public Information Office caught some or all of Alito’s retort, about what he meant by “had I known there would be a dissent read.” It seems clear enough he knew when the justices took the bench that Sotomayor planned an oral dissent, because he expectantly paused at the end of his short summary. But what he seemed to mean was that he didn’t have much notice that she planned to dissent.
Indeed, while Alito favors short summaries, he does tend to respond to more of the dissent when he knows an oral dissent is coming. (He did this most recently in Louisiana v. Callais in late April, when he responded in some detail to Kagan’s oral dissent. But that was a “prebuttal” – he included his responses in his opinion summary, not speaking after her oral dissent.)
The closest historical analogue I can remember to today’s Alito retort came in Glossip v. Gross in 2015. In that case, in which the court rejected an Oklahoma death row inmate’s challenge to the state’s means of execution, Justice Stephen Breyer read from his dissent, joined by Justice Ruth Bader Ginsburg, that fundamentally called into question the constitutionality of the death penalty.
That prompted a short rebuttal from Justice Antonin Scalia, delivered from the bench (and in a concurrence in print that was, a bit strangely, more colorful than his bench statement).
Back to Alito and his third opinion of the day. He delivers a succinct summary of the court’s holding in another immigration case, Mullin v. Doe, which allows the Trump administration to end Temporary Protected Status for Syrian and Haitian nationals.
He essentially makes just one point from his 24-page opinion, that the administration has ended TPS for every country that has come up for renewal. (He doesn’t connect the dots to his conclusion in the written opinion that this undercuts the challengers’ arguments about the alleged discriminatory animus at play regarding Syria and Haiti.)
It is essentially another 6-3 lineup, with two justices not joining one part of Alito’s opinion, and Thomas filing a concurrence. Kagan has written a sharp dissent, joined by Sotomayor and Jackson, but she does not summarize it from the bench.
The reporters look expectantly at the chief justice, wondering whether there could be yet more today. But he is looking to the marshal.
Curley bangs her gavel and announces that the court is recessed until Monday. With no “penultimate” announcement from the chief justice, it appears there are at least two more opinion days, with more fireworks likely.
