U.S. Supreme Court

SCOTUS Notebook: Hot Day Outside, Cool Day for Solicitor General

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Outside the U.S. Supreme Court yesterday, a mild June had finally surrendered to summer, and temperatures approached 100 degrees. A phalanx of television camera operators and technicians parked their equipment just off the court’s plaza, and they tried to shield the sun with umbrellas as they waited for their correspondents to come outside with opinions in their hands.

Inside the court building, thanks in part to an extensive overhaul of the building’s internal systems over the last eight years, the air was comfortably cool, especially in the courtroom.

The press section was full of reporters. The rows of pews for the general public was largely full. But in an oddity that occurs each spring during the court’s final opinion days, the dozens of chairs that make up the section of the courtroom reserved for members of the Supreme Court Bar went mostly empty.

There are thousands of lawyers nationwide who are members in good standing of the high court’s bar, though most never argue before the justices or attach their name to a brief filed in the court. This larger, official bar is not to be confused with the “Supreme Court bar” – the small cadre of litigators who specialize in arguing before the justices, such as Paul D. Clement, Carter G. Phillips and Patricia A. Millett.

For oral arguments during the term, from October through April, the bar section of the courtroom is usually full or nearly full. And on most Mondays throughout the term, the section also has groups of lawyers who appear in person to be admitted to the Supreme Court Bar. But on other days, especially the last few opinion days of the term, the bar section is often quite empty.

About a dozen lawyers filled seats in the bar section yesterday, leaving many empty chairs. By next week, with public anticipation growing for the court’s decisions in the health care and immigration cases, that may change, and a lot more of those chairs may be filled.


Among those lawyers taking their places in the bar section were Solicitor General Donald B. Verrilli Jr.; Sri Srinivasan, the principal deputy solicitor general, whom President Obama just nominated for the U.S. Court of Appeals for the District of Columbia; and one or two other lawyers from the solicitor general’s office.

It’s customary for the solicitor general to show up on opinion days, and Verrilli appeared perfectly upbeat despite all the attention in March to what some perceived as his subpar performance arguing the Affordable Care Act cases. (Some of the criticism was ideologically motivated by critics of the health care law.)

Since that time, Verrilli hasn’t felt the need to hide under a rock. He argued the term’s second-biggest case, the Arizona immigration law, on the term’s last day of oral arguments in April. He attended the White House Correspondents Association dinner a few days later. Last week, Verrilli was spotted at the annual conference of the American Constitution Society, the group for progressive-minded lawyers and law professors.

This week’s decisions of the court may have been enough to send Verrilli back into a funk, however.

On Monday, the solicitor general’s position lost in three out of four decisions announced by the justices—two defeats on Native American matters and a total smackdown of the administration’s efforts to classify pharmaceutical sales representatives as workers eligible for overtime pay. The only victory that day came in a Confrontation Clause case in which the solicitor general was an amicus, and even that decision was a bit of a muddle because no opinion commanded a majority.

Yesterday, Verrilli and his team did a little better, losing only two out of the four decisions announced. The government won in one case and had not participated in the fourth decided that day.

Counting the Affordable Care Act cases as one, the court has six decisions left going into next week, and the solicitor general’s office participated in four of those. Verrilli himself argued three of those: health care, Arizona immigration, and the Stolen Valor Act.


The final weeks of the court’s term are when many of the most contentious decisions come out, and that usually means more dissents delivered orally from the bench. The justices reserve such oral dissents for times when they feel especially strong about their views or they believe their colleagues have taken liberties with precedents or procedure.

There have been relatively few such oral dissents this term. In March, Justice Antonin Scalia delivered a sharp dissent in two related cases about the effective assistance of counsel in the plea-bargaining process.

Yesterday, Justice Stephen G. Breyer delivered a dissent that, by his own acknowledgement, was on an “issue that normally wouldn’t merit my saying something from the bench.”

Without going into all the fine points, the case of Knox v. Service Employees International Union was about whether non-union members deserved the opportunity to raise a fresh objection to a special union assessment for political goals.

The court held 7-2 that they did, with Breyer and Justice Elena Kagan in dissent. “So far, an ordinary disagreement in an ordinary case,” Breyer said from the bench.

But Justice Samuel A. Alito Jr.’s majority opinion went too far, in Breyer’s view, by deciding that public-sector unions must gain the affirmative consent of nonmembers for any special assessments, rather than putting the onus on such non-members to “opt out” of having fees extracted from their paychecks.

This was an issue that court decided “without adequate briefing,” Breyer said. He noted that the two justices who joined only the court’s judgment on the primary question in the case, Ruth Bader Ginsburg and Sonia Sotomayor, agreed with him on this point.

In fact, Justice Sotomayor wrote an opinion for herself and Ginsburg that was far more agitated than any of Justice Breyer’s language. (“The majority breaks our own rules and … disregards principles of judicial restraint,” Sotomayor wrote.) But justices rarely deliver an angry concurrence from the bench.

One may presume that some of the court’s final decisions, on juvenile justice, immigration, and health care, will yield some sharp words of dissent in the courtroom.

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