A “view” from the courtroom: A nod to a late president and a retired justice

The courtroom is quite full this morning, but there is room for a couple of distinguished spectators.

One is Jay Clayton, the chairman of the U.S. Securities and Exchange Commission, who is seated in the front row of the Supreme Court Bar section usually filled by those to be sworn in to the bar. Indeed, that is one reason Clayton is here, as Solicitor General Noel Francisco will introduce him and vouch that Clayton meets the necessary qualifications.

The other is that the second case for argument today is Lorenzo v. Securities and Exchange Commission, about whether the agency may bring a “fraudulent scheme” anti-fraud claim against a subordinate employee who sent emails drafted by his superior that contained false statements. Clayton is the most prominent person to be sworn into the Supreme Court Bar since last December, when then-Gov. Chris Christie of New Jersey sat in the very same seat and was sworn in before the argument in Christie v. National Collegiate Athletic Association, in which the court later, under the caption Murphy v. NCAA, invalidated a provision of the federal Professional and Amateur Sports Protection Act, and thus effectively allowed every state to legalize sports betting.

The other prominent spectator today is retired Justice Anthony Kennedy, who takes a seat in the VIP section just a few moments before court is set to begin. It is at first unclear why he might be in attendance, though the first case, Dawson v. Steager, is a challenge by a federal retiree to disparate tax treatment of his federal retirement benefits by the state of West Virginia.

When the court takes the bench at ten o’clock, Chief Justice John Roberts will supply the answer. But first, there is a brief recognition of the death of the 41st U.S. president.

“The court notes with sadness the death of former President George H.W. Bush on November 30, 2018,” Roberts says. “In observance of the National Day of Mourning, the court will not sit on Wednesday, December 5th.”

He doesn’t mention, and not that this would be the time for it, that the court has moved its one argument originally scheduled for Wednesday — Gamble v. United States, about the “separate sovereigns” exception to the double jeopardy clause — to Thursday. The court announced the change over the weekend, and the move will not only be in keeping with the National Day of Mourning, but will allow any members of the court who wish to do so to attend President Bush’s memorial service at the National Cathedral, which is scheduled to start at 11 a.m. Wednesday.

One of our favorite moments from coverage of the late president over the weekend was Justice Clarence Thomas’ recollections in an interview with CNN. Thomas, whom Bush nominated in 1991 to succeed retired Justice Thurgood Marshall, recounted his visit to the Bush family compound in Kennebunkport, Maine, and how First Lady Barbara Bush spilled the beans that Thomas was there to be offered the seat. Later in the hourlong CNN special, Thomas added his remembrance about what it was like to take a white-knuckle-inducing ride with the president in his speed boat, Fidelity.

The chief justice has one more preliminary matter this morning.

“Before we commence this morning’s business, I would like to acknowledge the presence in the courtroom of Justice Anthony M. Kennedy, and I would like to read into the records of the court an exchange of correspondence,” Roberts says.

When Kennedy appeared in the courtroom for the first time as a retired justice, on Justice Brett Kavanaugh’s first day on the bench in October, the chief justice promised that the letters would be read in court “at the appropriate time.”

“The first letter is dated today, December 3, 2018,” Roberts continues. “It is to Justice Kennedy from my colleagues and me, and it reads as follows:

Dear Tony,

Although our new term is well underway, we remain keenly aware of your absence on the bench and in our conference. From the time each of us came to know you, you have enriched our lives through your kindness, camaraderie, and generosity. We are heartened that you have maintained an active presence in the building, and we take great comfort that you remain our valued colleague here.

No one leaves Sacramento to become a prospector. But your labors since moving east have yielded a treasure of thoughtful decisions. This legacy will guide the understanding of judges, lawyers, and citizens for years to come.

Your example of ceaseless civility inspires us as we go forward with the work of the court that you have so vitally advanced. We wish you and Mary well in your much-deserved retirement, and we look forward to many more years in this new chapter of our shared friendships.

The chief justice says, “I would now like to read a letter, also dated today, written by Justice Kennedy. It reads:

Dear Chief Justice and Dear Colleagues,

Please accept this expression of our deepest appreciation for the uplifting words and sentiments in your most gracious letter. It will be treasured by our family.

This reply is not to say farewell, for it is my hope to linger here to be with all of you in the days and years to come. It is necessary, of course, to say farewell to being on the bench and in the conference room. There, for the past thirty years, it was a high honor to join with our colleagues in seeking how best to define and interpret an idea and a reality—the idea and the reality of the law.

Even if we disagreed in a particular case, we admired and respected each other as we sought to explain the law as we found it to be and to ensure that, over the course of time, the law and the freedoms it sustains will be ever more secure, ever more revered.

We first came to Washington knowing few who lived here, but the members of the court at once reached out to Mary and me with gifts of guidance, understanding, and above all, the priceless bond of friendship. It seems proper to quote from the poet and to say that for all these gifts “I can no other answer make but thanks, and thanks, and ever thanks.”

With assurances of my continued highest regards, I remain, yours sincerely,

Tony

It may not surprise anyone that the poet is a favorite of Kennedy’s — the phrase is from William Shakespeare’s “Twelfth Night.”

From there, the court moves on to its more routine business. Kennedy stays for the first argument, listening intently. But at the break between the first and second arguments, he slips out to continue his active retirement elsewhere in the building.