What's old is new again: Justices back at court for new term

By Mark Sherman and Jessica Gresko
Associated Press

WASHINGTON (AP) — The Supreme Court returned to the courtroom Monday for the start of a momentous new term, after a nearly 19-month absence because of the coronavirus pandemic.

Abortion, guns and religion all are on the agenda for a court with a rightward tilt, including three justices appointed by former President Donald Trump.

Chief Justice John Roberts was in his usual place in the center chair and Justice Clarence Thomas, the court's longest serving member, was to his right. But almost everything else was a little different for a court that, like the rest of the country, still is dealing with the virus.

Inside the courtroom, eight of the nine justices took the bench at 10 a.m. EDT. Justice Brett Kavanaugh participated remotely from his home after testing positive for COVID-19 late last week, his voice echoing in the courtroom when he had a question to ask while his high-backed chair sat empty. Kavanaugh, who was vaccinated in January, is showing no symptoms, the court said. All the other justices also have been vaccinated.
Monday was also the first time that new Justice Amy Coney Barrett participated in arguments in the courtroom, despite nearly a year on the court as its most junior member.

Only about 50 people were in attendance — lawyers involved in the cases, reporters who regularly cover the court, retired Justice Anthony Kennedy, some of the justices' spouses and some court employees. Justice Sonia Sotomayor was the only justice who wore a mask. Sotomayor, who has had diabetes since childhood, is the only one of the justices with a known chronic condition.

Spectators sat in socially-distant spots and wore masks, although the lawyers removed theirs for their arguments. The lectern the lawyers were arguing from was also placed farther away from the justices than before the pandemic.

The court is also requiring negative COVID-19 tests from lawyers and reporters who want to be in the courtroom. Lawyers who test positive will be able to present their arguments via telephone, the court said. That's the way lawyers had been arguing before the court because of the pandemic.

With the building closed to the public, the court's hallways, normally bustling on mornings when the court is in session, were eerily quiet. A portrait of Justice Ruth Bader Ginsburg, who died just over a year ago, hangs in a main corridor, directly across from her friend and colleague who died in 2016, Justice Antonin Scalia. As visitors enter the building from its north side, the liberal Ginsburg's portrait is on the left, the conservative Scalia's on the right — in death as in life.

Monday was the first time the public was able to listen live to courtroom proceedings, via a link on the court's wesbite. The court first allowed live audio  for the telephonic arguments it conducted in 2020 and earlier this year because of the pandemic.

Those who listened in heard Thomas continue to ask questions, a practice he began during the telephonic arguments. Before that, it had been years since he asked a question in the courtroom. His colleagues appeared to defer to him Monday, as Thomas asked the first questions in the day's two cases — a water fight between Tennessee and Mississippi and a dispute over an enhanced prison term for a repeat offender.

"Well counsel, you seem to complain about Tennessee pumping water from Mississippi, but you admit that Tennessee does not enter across the border into Mississippi, isn't that correct?" Thomas said, asking the term's first question.

Monday's cases were not among the highly anticipated disputes the court will referee this term.

In the dispute over water, there seemed to be little support for Mississippi's claim that the Memphis area has been taking the state's water from an underground aquifer that sits beneath parts of both states. The dispute stretches back to 2005 when Mississippi first claimed that Memphis was pumping water from the Mississippi portion of the aquifer. Tennessee says water doesn't work that way, contending the aquifer is an interstate resource that should be shared fairly.

In the other case, the justices appeared favorable to William Wooden of Tennessee, a man with a prior criminal record who was given a mandatory 15-year minimum prison sentence when he was convicted of having a gun. Federal law prevents felons from owning firearms.

The case arises under the Armed Career Criminal Act and the issue is whether the theft of items from 10 units on the same day at a mini storage facility should count as one conviction or 10, which lower courts found made the man eligible for the longer prison sentence.

"Who thinks that, Ms. Ross, in the real world?" Justice Neil Gorsuch asked Justice Department lawyer Erica Ross as she explained why the court should consider that Wooden committed 10 crimes.

Thomas, though, was skeptical of part of lawyer Allon Kedem's argument on behalf of Wooden. "What if they took a smoke break?" Thomas asked. Or if Wooden and his accomplices decided to have lunch or a cup of coffee before resuming the break-in at the storage units, would that be considered one crime or more, Thomas wanted to know.

Also on Monday the court affirmed a lower court ruling that said District of Columbia residents are not entitled to voting representation in the House of Representatives. That was among hundreds of appeals the court rejected.

The justices also:

— Declined to get involved in a lawsuit over a disputed Pentagon cloud computing contract, a decision that follows the cancellation of the contract for the Joint Enterprise Defense Infrastructure Cloud computing project earlier this year.

— Left in place a lower court ruling that revived a lawsuit by the brother of a man who, as a passenger in a fleeing car, was fatally shot by police in Hayward, California.

— Rejected an appeal from the Philadelphia-area transit system of a lower-court ruling that would force it to display ads touting a prize-winning investigation by the Center for Investigative Reporting into racial bias in the mortgage market.