U.S. Supreme Court Justice Anthony Kennedy testifying in 2015 about the Supreme Court budget. Photo by Diego M. Radzinschi/ALM

Some spectators attending the U.S. Supreme Court’s final sitting of the term on Wednesday morning were there to hear their decisions announced.

After all, it is the only day of the term when, by process of elimination, it can be predicted which rulings will be announced. Only two argued cases were left to be decided.

So Mark Janus and Illinois Gov. Bruce Rauner were present to hear their win in Janus v. AFSCME Council 31. U.S. Solicitor General Noel Francisco, who usually attends anyway, also learned the Trump administration’s position in Janus prevailed.

And Latham & Watkins partner Gregory Garre, who represented Florida in the Florida v. Georgia “water war” case, was on hand, learning that the court would send the case back to a special master—probably good news for Florida.

But just minutes before the court session began, U.S. Supreme Court Justice Anthony Kennedy’s wife Mary—apparently accompanied by several family members or friends—slipped into the justices’ guest seats.

Suddenly the focus shifted for many spectators, especially those who cover the court as journalists: Was it a sign that Kennedy was about to announce his retirement?

When the justices themselves took their seats at 10 a.m., the Kennedy-departure scenario seemed possible. Liberal Justices Stephen Breyer and Elena Kagan looked forlorn, and Kennedy himself seemed glum as he perused a document—was it a retirement speech?—in front of him.

But soon, the announcement of the Janus opinion took over spectators’ attention. Justice Samuel Alito Jr., who has made something of a campaign out of trying to end public employee union “agency fees” on First Amendment grounds, finally got his way.

Alito said it was time to overturn the court’s decades-old Abood precedent that allowed such fees, and he dismissed the “sky is falling” complaints of unions that doing so would be a crippling blow.

Then it was Kagan’s turn to rebut Alito’s opinion on behalf of four dissenters. Kagan sits next to Alito on the bench, but did not look at him as she angrily took him to task for his “little regard” for the importance of stare decisis—the tradition of honoring past precedents. The majority opinion, she said, would “wreak havoc” with entrenched labor contracts affecting millions of employees.

Then came Breyer, who correctly guessed that the audience was not interested in a lengthy summary of his decision in the complex water rights case of Florida v. Georgia. He lightened the mood by invoking Bing Crosby’s “Apalachicola, F.L.A.” song of 1947 and Alan Jackson’s more recent song “Chattahoochee.”

Chief Justice John Roberts Jr. wrapped up the session with his traditional thanks to the court’s employees and the Supreme Court bar for helping the court fulfill its mission. He also announced the retirements of three court employees—none of whom wore black robes to work.

As court marshal Pamela Talkin banged the gavel to recess the court for summer, Kennedy rose with the rest of the justices, but did not say a word. The anticipation eased somewhat.

But some spectators remember that Thurgood Marshall announced his retirement in 1991 after the court recessed for the summer. The Kennedy watch is not over.



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