The Room Where It Happens

June 28th, 2018

The Supreme Court is a secretive institution. It informs the public when the justices will issue opinions. Alas, they do not publicize in advance which case will be decided, or who will announce the decision. As a result, Court watchers and the press often grasp for any tea leaves they can find. One tried-and-true method is to use the process of elimination: If nine cases were argued in a given month, and eight justices have already written an opinion from that sitting, then the remaining ninth justice likely has the outstanding decision. Another approach is sartorial in nature: If Justice Ginsburg walks to the bench wearing her golden neck collar — or, jabot — she will be in dissent.

The press relies on another method that is less familiar, but quite familial. On the right side of the Court chamber, there is reserved seating for relatives and friends of the justices. Often, when a justice is scheduled to announce a majority or dissenting opinion, his or her spouse will sit in the reserved section. For example, on Tuesday, Ginni Thomas — Justice Thomas’s wife — entered the chamber a few minutes before the session began. The press box — situated on the left side of the Court — began to buzz. (I was seated next to the reporters, in the section reserved for members of the Supreme Court Bar). The journalists speculated that because Justice Thomas’s wife was in attendance, he would announce the opinion in the not-yet-decided case of National Institute of Family and Life Advocates v. Becerra. The trick worked. Justice Thomas indeed wrote the majority opinion. The 5-4 case invalidated a California law that required crisis pregnancy centers to advertise certain abortion services.

On Wednesday — the last day of the term — the media followed a similar playbook. (I was once again seated next to the press box.) The reporters noticed that Joanna Breyer — Justice Breyer’s wife — was in attendance. Her attendance made sense, because most Court watchers expected Justice Breyer to write the majority opinion for a not-yet-decided water dispute between Florida and Georgia. Justice Alito was expected to write the only other outstanding case, which involved fees paid to labor unions.

But then everything changed. Mary Kennedy, Justice Kennedy’s wife walked into the room. Justice Kennedy was not expected to issue any more opinions, so her presence was a mystery. She was followed by (what looked like) her children and grandchildren, who took their seats in the reserved seat section. At that point, it became obvious that the entire Kennedy clan was in attendance. One of the members of the press section released an excited utterance: “Oh, f***!” The other reporters tried to figure out whether the guests were in fact Kennedy’s family members. No one quite knew for sure. But there was no more time to think about it.

Moments later, Chief Justice Roberts gaveled the session into order. Justice Sotomayor was absent from the Court. Justice Alito did in fact announce the labor-union case. And Justice Breyer announced the water-dispute case. At the end of the proceeding, the chief justice customarily announces any employment matters at the Court — for example, if someone had achieved 25 years of federal service. Yesterday, he said there would be three retirements. I nearly fell out of my seat. But soon it became clear that he was referring to Court staff. Once those announcements were complete, Chief Justice Roberts said the Court would adjourn until the first Monday in October.

As the marshal gaveled the session to a close, each of the justices receded behind the red curtains to their private chambers. I watched as Justice Kennedy walked away from the bench — his final act as a Supreme Court justice.

Cross-Posted at National Review