On the traditional first Monday in October, Chief Justice John Roberts Jr. announced from the bench that he was pleased to open a new term of the U.S. Supreme Court. It is a term that is already taking shape with high-profile cases and contentious issues. Law.com's new Supreme Court argument report provides argument highlights -- as well as an unofficial tally of justice behavior and a quote of the day.
First up on Monday morning: the consolidated cases of Washington State Grange v. Washington State Republican Party and Washington v. Washington State Republican Party. At issue is a state election system in which candidates may self-select a political party preference on the ballot without proving an affiliation with, or nomination from, that party. Voters can vote for any candidate, and the two candidates who receive the highest number of votes in the primary, regardless of party affiliation, advance to the general election.
The Washington State Republican Party, joined by the state Democratic and Libertarian parties, sought to enjoin this "top two" system. The district court held that the system violated the political parties' First Amendment right of association by compelling them to be associated with candidates not of the parties' choosing. The 9th U.S. Circuit Court of Appeals agreed with the district court, and Washington state and the Washington State Grange appealed to the high court.
During oral argument, Justice Samuel Alito questioned the rationale for allowing candidates to self-select a political party "preference" to be listed on the ballot instead of alternate information about their views that might be useful to voters. "Somebody may want to say: I'm the pro-environment candidate, or I'm the no-new-taxes candidate," he said.
Several justices pointed out that the political parties would not have the option of dissociating themselves from candidates. Justice Anthony Kennedy asked Washington Attorney General Robert McKenna: "If it's your position that the parties are not really injured or affected by this, and the parties' position is that they are, who should we believe?"
Justice Antonin Scalia also expressed concern that, though a candidate can identify a party preference, that party would "have no opportunity on the ballot to say, we have nothing to do with this person" -- a discrepancy he said would result in "a great disadvantage to the parties."
Some justices, including Justice Ruth Bader Ginsburg, also brought up the issue of voter confusion -- whether a voter, looking at a ballot, would mistake a candidate's self-selected party preference for a nomination or endorsement from that party. Roberts likened that analysis to a likelihood-of-confusion inquiry in a trademark case, saying: "I don't know why you would give greater protection to the makers of products than you give to people in the political process."
The second case argued on the justices' first day back from summer vacation was Board of Education of the City of New York v. Tom F., which concerns the circumstances under which parents who believe their special-needs children cannot receive an appropriate education inthe public schools can be reimbursed for private school tuition under the Individuals with Disabilities Education Act.
Tom F.'s son, Gilbert F., was diagnosed as learning disabled and never attended a public school. Tom F. sought reimbursement from the school board in New York for his son's private school tuition, and the school board argued that IDEA only provides for reimbursement for the parents of a child who previously received special education services from a public agency. The district court agreed with the school district, but the 2nd U.S. Circuit Court of Appeals reversed.
Counsel's arguments and the justices' questioning focused less on the facts of the case -- the individual educational plan proposed for Gilbert F. by the school board and whether it qualified as free and appropriate public education -- and more on detailed statutory interpretation and analysis of congressional intent.
The parties and justices offered differing views on whether IDEA mandates a tryout period in which students must attend public school for a period of time before opting for private school and requesting reimbursement -- whether the statutory language requiring that a child have "previously received" public special education services would be triggered by attendance in a public school for only one day, or for an 11-day stint.
Scalia repeatedly questioned whether the intent of the statute was to provide tuition reimbursement for parents who have no desire to send their children to public schools and who would pay for private school, "no matter what." Such "well-heeled" parents might think "what the heck, if we can get $30,000 from the city to pay for it, that's fine," Scalia said.
Kennedy recused himself in the Tom F. arguments, quietly slipping out of his chair and out of the courtroom in the short lull between the two arguments. Justices very rarely give explanations for recusal and the reason behind Kennedy's decision to recuse in this case was not widely known. A Court official gave a friendly heads-up to an artist starting a courtroom sketch before the justices took the bench, telling her to be sure to draw Kennedy during the first hour of argument.
Most Congenial Justices:
Though Justice Clarence Thomas is famously quiet in the majority of oral arguments before the Court -- and was so on Monday as well -- the fact that he didn't pose any questions to counsel didn't mean he refrained from any comments whatsoever. Thomas and Justice Stephen Breyer often conferred quietly, Thomas occasionally turning his chair slightly and leaning in toward his colleague. Several times, Thomas' comments elicited a smile from Breyer, and once, a slight chuckle.
Most Animated Justice:
When posing questions to counsel, most of the justices sat up in their seats. Alito often leaned his head to one side, resting it on his hand, while Scalia and Breyer sometimes waved their hands in emphasis. The most emphatic: Scalia, true to his reputation.
Scalia and Roberts both got laughs from the audience for clever questions, but the loudest laugh came during an exchange with Justice David Souter, below.
Quote of the Day:
During arguments in the Washington State case, Souter pressed McKenna on the claimed distinction between political party "preference," and party affiliation or registration:
Souter: "[G]oing back to my question, do you know any people who go around saying,: 'Well, you know, I really prefer the Democrats; I'm a Republican myself.' I mean that, that doesn't happen."
McKenna: "Well, the example of Senator [Joe] Lieberman comes to mind, where he said: 'I really prefer the Democrats and I'm running as an independent.'"
Souter: "There's always one."
Those Amazing Chairs:
The Court's extra-tall chairs, from which the justices loom over attorneys, seem to have a swing-and-spring mechanism, allowing the justices to lean back so far as to appear almost in danger of toppling over. Some justices, such as Ginsburg, seem not to take advantage of this feature, but most tip their chairs back slightly at many points during arguments. During Roberts' short opening statement Monday morning, Breyer leaned back and gazed briefly at the vaulted ceiling, perhaps contemplating the term ahead.