A View from the courtroom

The justices enter the fourth quarter

A View from the Courtroom is an inside look at oral arguments and opinion announcements unfolding in real time.

We have entered the final week of arguments for the 2021-22 term, and what may well be the last week that Justice Stephen Breyer takes the bench. (The court is still releasing opinions electronically because of the pandemic, and it is perhaps wishful thinking to hope the justices will resume announcing opinions from the bench before the end of June.)

Since March, masks have no longer been required in the courtroom, though some law clerks and journalists have continued to wear them, as has Justice Sonia Sotomayor. But when the court takes the bench at 10 a.m. Monday to hear Kennedy v. Bremerton School District, she isn’t the only justice wearing one.

Meanwhile, the courtroom’s VIP section is at a recent high of seven occupants. No spouses of the justices today. There have been a handful of other guests in the choice seats in recent weeks, even though the court building remains closed to the public.

By about 9:45 a.m., Paul Clement and Erin Murphy of Kirkland & Ellis arrive for the Kennedy argument, the big case about former high school football coach Joseph Kennedy and his prayers at the 50-yard line right after games.

Clement instinctively sets up at the table to the right of the lectern. But when, a few minutes later, Richard Katskee and Bradley Girard of Americans United for Separation of Church and State, representing the school district, arrive, Katskee looks perplexed. It appears there is confusion over which side of the lectern each counsel should be sitting in this case.

When the U.S. solicitor general’s office is participating as an amicus, the side the government is supporting sits on the right (looking at the bench). But when, like today, the SG’s office is not participating, it seems that court custom dictates that the petitioner starts on the left.

The two legal teams discuss this for a minute or two, and for a time I think about fishing out a quarter to offer them for a pre-game coin toss. But then Clement and Murphy agree to move to the left side. (Clement, a former U.S. solicitor general who has argued more than 100 cases before the justices will tell me later, just outside the courtroom, that he did not realize he was purportedly in the wrong spot. And I have witnessed hundreds of arguments and I could not have told you which side of the lectern the petitioner’s counsel sits when the U.S. solicitor general’s office is not participating.)

If another veteran Supreme Court advocate had his druthers, he would be arguing representing an amicus today in support of the Bremerton school district. Michael Dreeben, who has also argued before the court more than 100 times, most when he was a career attorney in the SG’s office, had asked the court for permission to participate in oral argument on behalf of six city, county, and local government employer groups, saying that hearing their arguments would be of “material assistance” to the court. In a December case, United States v. Taylor, Justice Samuel Alito had told Dreeben, “It’s always good to hear you argue.” But that was evidently not meant to be taken too literally. The court denied Dreeben’s motion to participate in today’s argument.

Meanwhile, it seems that just about every law clerk has taken a seat in the public gallery today, and with the VIP guests and 10 or 12 journalists, the courtroom is as full as it has been all term.

When nine more employees enter at 10 a.m., Justice Elena Kagan is wearing a mask for the first time since the sitting right after the holidays, when the omicron variant of COVID-19 prompted Sotomayor to participate from her chambers, and all but one of her colleagues to don a mask in the courtroom.

The Kennedy case leads to a lively 108 minutes of argument. Amy Howe has the main account here. There are hypotheticals about teachers praying in the classroom, coaches taking a knee against racism, or waving a Ukrainian flag to protest the Russian invasion. There is much debate about the complicated record in the case, leading Alito to introduce a hypothetical at one point by saying, “Forget about all the complicated facts in this case.”

The court’s 1971 decision in Lemon v. Kurtzman – setting forth a multi-factor test for when the government unconstitutionally establishes religion – comes up repeatedly, and when Justice Brett Kavanaugh suggests the so-called Lemon test has not been seriously applied by the high court in many years, Clement says, “Sure, but it’s a stubborn fruit, and I don’t think just pushing a pencil through it has done the trick. I mean, you really have to slice it in half.”

It’s a pretty good line, though no one can really top the late Justice Antonin Scalia’s description of Lemon, in an opinion concurring in the judgment in Lamb’s Chapel v. Center Moriches School District, as being “like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried.”

When the argument is over, the two legal teams appear to skip the post-game handshake. Clement and Murphy hustle out to meet up with lawyers from First Liberty Institute, which has long represented Kennedy, to go before the cameras on the court’s plaza.

This tradition has continued for the many blockbusters this term even though litigants themselves are not permitted in the courtroom but listen to the livestream somewhere nearby. In the past, broadcast correspondents such as Nina Totenberg of NPR or Pete Williams of NBC News have taken the lead in questioning the lawyers at these post-argument press scrums. But with the argument audio available, they no longer need the post-game sound bites, so they skip it. That has led to some awkward moments when it is left to young producers or perhaps even a camera operator to be the only ones asking questions. (They sometimes resort to something safe like, “So, how did it go?”)

Today, Coach Kennedy is out front, in a blue Bremerton Knights polo shirt. He says he will have to ask his lawyers about some of the more complicated legal questions he heard on the livestream. But he is more than happy to tell the press scrum the basics of his story again and then greet some well-wishers. He has a couple of months to keep an eye on the scoreboard for the outcome of his biggest contest.