Thursday is the first “bonus” day – that is, a day added to the Court’s calendar for the sole purpose of releasing opinions – at the Court this Term.
As seems to be the case each year for the first extra day, the bar section is lightly filled, with only eighteen or twenty bar members taking seats, not counting U.S. Solicitor General Donald B. Verrilli Jr. and other members of his office.
The public section is relatively full, and we understand that James Obergefell, the lead petitioner in the same-sex marriage cases, was first in line for a seat in that section again today. Despite speculation by cable-news hosts, Obergefell will not see a decision in his case today.
Joanna Breyer, the wife of Justice Stephen G. Breyer, takes a seat in the VIP section a few minutes before the start of the session. That is a possible sign, though not a guarantee, that her husband will deliver an opinion this morning.
Indeed, when the Justices emerge from the curtains to take the bench, Justice Breyer has a slightly disheveled sheaf of papers in his hands that looks like a bench announcement. But it will be a little while before we get to his turn.
Justice Sonia Sotomayor is up first, with Brumfield v. Cain. The Court rules five to four – along its traditional ideological lines, dare we say – that there was sufficient evidence that a death-row inmate in Louisiana could show he was impaired by an intellectual disability that he was entitled to have his claims under Atkins v. Virginia (which bars the execution of inmates with a mental disability) considered by a federal court.
Chief Justice John G. Roberts, Jr., announces that Justice Samuel A. Alito, Jr., has the Court’s opinions in two cases.
The first is Ohio v. Clark, about whether the introduction in court of a young child’s statements to his preschool teachers about child abuse at home, when the child was unfit to testify, violated the Sixth Amendment right of the accused to confront the witnesses against him.
In somewhat of a surprise considering the contentious oral argument in the case, the Court is unanimous in its judgment that the child’s statements to his teachers did not violate the Confrontation Clause.
In Alito’s second decision, in Davis v. Ayala, the Court rules five to four to reverse the Ninth Circuit and hold that a trial judge’s decision to exclude a criminal defendant’s attorney from part of a Batson v. Kentucky hearing, in which the prosecutor explained the basis of some of his peremptory strikes of jurors, was harmless error.
Alito explains that his opinion was joined by the Chief Justice and Justices Antonin Scalia, Anthony M. Kennedy, and Clarence Thomas (with Kennedy and Thomas filing concurring opinions). As he notes that the dissent by Justice Sotomayor is joined by Breyer and Justices Ruth Bader Ginsburg and Elena Kagan, Alito tilts his head and quickens his pace of speech, as if to say: “you know, the usuals.”
Justice Breyer is up next with the third five-to-four decision of the day, one that definitely does not divide along the usual lines. (Kedar Bhatia’s excellent Stat Pack preview for the Term shows that going into today, fourteen percent of the Court’s cases were decided by a vote of five to four, the same proportion for all of last Term.)
In Walker v. Texas Division, Sons of Confederate Veterans, the majority holds that the specialty license-plate designs offered by Texas constitute government speech, and thus Texas was entitled to refuse the design proposed by the Confederate heritage group that featured a Confederate battle flag.
“The history of license plates—and, we have a long history of license plates in the world—shows that States have long used license plates to convey government messages,” Breyer says. “The speech appears on what is essentially a government-issued ID, such that a reasonable observer would associate the speech with the State.”
In this case, Justice Thomas has joined Breyer, Ginsburg, Sotomayor, and Kagan to make up a five-Justice majority. That means Thomas was the senior Justice in the majority – a rare situation – and one can presume that under the Court’s normal practices, it was Thomas who assigned the opinion to Breyer.
The Chief Justice announces that “Justice Thomas has the opinion of the Court in two cases this morning.”
First is McFadden v. United States, a case about the evidentiary requirements of the federal Controlled Substance Analogue Enforcement Act of 1986, a measure designed to treat analogue substances designed for human consumption the same as controlled substances.
Thomas has barely begun his statement that the case is about a Virginia defendant charged with substances “known as bath salts” when he hesitates briefly to contemplate what he has just said. “A sentence which I completely do not understand,” he says.
Everyone laughs. The “bath salts,” his opinion explains, are really “various recreational drugs used to produce effects similar to those of cocaine, methamphetamine, and other controlled substances.”
In a unanimous judgment (the Chief Justice concurs in part and concurs in the judgment), the Court holds that when an analogue is involved, the statute requires the government to establish that the defendant knew he was dealing with substance regulated under either the Analogue Act or the main federal Controlled Substances Act.
Finally, Justice Thomas has the opinion in Reed v. Town of Gilbert, about an Arizona municipality’s outdoor sign regulations that were challenged on First Amendment grounds by a church seeking to promote its Sunday services.
In another unanimous judgment (with five other Justices joining Thomas’s opinion), the Court holds that the town’s relevant sign restrictions are content-based regulations that fail strict scrutiny.
Justice Thomas uses one of his favorite phrases for his majority bench announcements (as well as a second clause that he has probably uttered before): “In an opinion filed with the Clerk today, we reverse the judgment of the Ninth Circuit.”
The Court’s six opinions today leave eleven decisions to come. Monday is the next day in which opinions will be filed with the Clerk.
[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in McFadden.]
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