Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Thursday, June 28, 2018

The Court Is in Recess, and in Transition

Yesterday, Chief Justice Roberts gaveled the last session of the term to a close. This was the completion of a big year on the Court: a new justice was sworn in, and several consequential decisions were handed down. This year, there were also rumors that Justice Kennedy may be retiring, so on the last day of the session, Court watchers were anxious to see what may develop in the last few hours.

The procedures and customs of the Court frequently give away what may happen on any given day - despite the Court never giving a heads-up to the public. Observers just have to wait and see. Frequently when a justice is scheduled to present an opinion, his or her family members or special guests may arrive in the gallery. This week, this custom was upheld when Justice Thomas' wife, Ginny, appeared on Tuesday for his reading of the majority in National Institute of Family and Life Advocates v. Becerra, and Justice Breyer's wife was in attendance yesterday for his reading of the majority in a water rights case of Florida v. Georgia. Nothing unusual, yet.

Then, a whole hoard of what appeared to be Justice Kennedy family members entered the courtroom. Observers and reporters perked up! There were no further opinions expected, so why the special guests of Justice Kennedy? After the announcement of the opinions, Chief Justice Roberts teased everyone by announcing three retirements, but all were of Court staff. The Court then filed out. Observers did not know it yet, but that was the last time Justice Kennedy would exit the chamber. He announced his retirement later that afternoon. 

Justice Kennedy's announcement provides President Trump an opportunity few presidents ever have. To appoint one Supreme Court Justice is not so unusual, but to be able to appoint two is close to monumental. Our public conversation has become nearly irretrievably controversial, so while Justice Kennedy settles into retirement this summer, everything else, and not just the temperature, is going to heat up.

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