Two oral dissents and more opinion days to come
VIEW FROM THE COURT
on Jun 27, 2024
at 5:17 pm
Thursday was the second of three opinion days this week as the court nears its summer recess. (Thomas Hawk via Flickr)
The court’s press room is still buzzing this morning over Bloomberg’s scoop yesterday on the brief but mistaken posting of the court’s disposition in Moyle v. United States and Idaho v. United States, about emergency abortion care.
But today, the courtroom will reclaim its rightful place as the center of the drama in the building.
Opinion season has seen some unusual occurrences this spring. On May 16, there was Justice Sonia Sotomayor’s cryptically short bench announcement in Smith v. Spizzirri, a low-profile arbitration case. “Stay means stay,” was all she said. “The opinion of the court is unanimous.”
On May 23, Justice Samuel Alito had two opinions to announce just as the controversy over two flags flown at his homes, associated with the Stop the Steal and Christian nationalist movements, was unfurling around him. He looked like he would rather be anywhere else as he delivered two uncharacteristically short oral summaries.
And a couple of weeks ago, we had the first oral dissent of the term, by Sotomayor in Garland v. Cargill. Today, we will have two more dissents from the bench.
The courtroom’s public gallery is pretty full today, but the bar section is almost empty, except for Solicitor General Elizabeth Prelogar and several members of her team, plus a handful of other lawyers. Michael Dreeben of Special Counsel Jack Smith’s office, who argued for the government in Trump v. United States, was here yesterday, but he is not here today.
There are no spouses of the justices in the VIP box this morning.
After some recent court sessions in which one justice or another was absent, all are present as they take the bench. Chief Justice John Roberts says that Justice Neil Gorsuch “has the opinion of the court in two cases this morning.”
Gorsuch, who was absent yesterday, is conveniently back this morning to deliver his summaries in two pretty big cases, Ohio v. Environmental Protection Agency and Harrington v. Purdue Pharma. Gorsuch can be pretty abrupt with his presentations, so much so that when he delivered the court’s opinion in FBI v. Fikre, in March, all I could think of was something I had seen on TV about a week before: Al Pacino’s breakneck announcement of “Oppenheimer” as best picture winner at the Oscars.
Today, Gorsuch presents the background for both of his cases, but when it comes to the holdings, he keeps it short. “This complicated case does not lend itself to easy oral presentation,” he says of the EPA decision.
The chief justice is next with the opinion in Securities and Exchange Commission v. Jarkesy. He takes a more thorough approach in explaining why a defendant facing civil penalties for securities fraud is entitled to a jury trial under the Seventh Amendment.
Roberts finishes, then turns his head in the direction of Sotomayor. She launches immediately into a summary of her dissent, which is joined by Justice Elena Kagan as well as Jackson. The majority decision is “a devastating blow to the manner in which our government functions,” she says. It’s a line not in her written dissent, which is always a highlight of dissents from the bench.
“Do not mistake judicial hubris with the protection of individual rights,” she continues. “Because the court fails to act as a neutral umpire when it rewrites established rules in the manner it does today, I, along with Justices Kagan and Jackson, respectfully dissent,” she says.
Roberts does not bat an eye at her little shot at his famous metaphor. He moves on to announce the last opinion of the day, the per curiam dismissal of the two Idaho abortion cases. He makes no reference to the Bloomberg scoop, but reads the per curiam part in full before announcing the lineup of concurring and dissenting opinions.
Then, he turns his head again, and it turns out that Jackson is prepared to make her first dissent from the bench.
“Today’s decision is not a victory for pregnant patients in Idaho,” Jackson says. “It is delay.”
“While this court dawdles and the country waits, pregnant people experiencing emergency medical conditions remain in a precarious position,” she says. “This court had a chance to bring clarity and certainty to this tragic situation, and we have squandered it.”
She finishes, and Roberts looks to Marshal Gail Curley to gavel the day’s session to a close. There is no announcement that tomorrow, which has been listed as a likely opinion day, will be the court’s last.
Soon after, there is some discussion in the press room when the court adds Monday, July 1, as another opinion day. The chief justice, who usually heralds the final opinion day from the bench, has yet to mention when that will be.
