SUPREME COURT NOTEBOOK

Mystery, a faux pas, wordy Breyer

By Mark Sherman and Jessica Gresko
Associated Press

WASHINGTON (AP) - Spring is the season of mystery at the Supreme Court.

The courtroom arguments are done, but the big cases have yet to be decided. Is a justice retiring? (So far no, but check back here frequently.)

Another puzzle this year concerns an unusual appeal the Trump administration filed more than six months ago, calling out ACLU lawyers as dishonest in a dispute over a pregnant teen-aged immigrant who wanted an abortion.

The justices have yet to act on the appeal, although they've had it on their list of cases to deal with since January. Most cases on the list are dispatched within weeks. The exception tends to be when there's disagreement about what to do and a justice wants to express his or her displeasure in writing.

The case the justices are mulling involves a teen who entered the U.S. illegally in September and learned while in federal custody in Texas that she was pregnant. The unidentified teen obtained a state court order permitting her to have an abortion and secured private funding for it, but federal officials refused to transport her or temporarily release her so that others could take her to get the procedure.

The ACLU helped the teen sue the Trump administration, a federal appeals court ruled in her favor in October and she had the abortion about 14 hours later.

The administration cried foul in its appeal to the high court, saying the ACLU misled government lawyers into believing they had another day to ask the justices to block the procedure, at least temporarily. But the abortion took place before any appeal was filed.

The ACLU responded that its lawyers made no commitments about the timing of the abortion and noted that the 17-year-old had to continue her pregnancy for a month after a judge permitted her to have an abortion.

The lingering dispute is over what becomes of the appeals court decision in favor of the teen. Underlying the case is not only the contentious issue of abortion, but also the administration's controversial policy of preventing immigrant teens in its custody from having an abortion, no matter how they became pregnant and even if a judge has signed off.

The justices are sticklers for the fine details, and whatever is causing the delay could be attributable to a disagreement over legal procedures. But there also could be some intense, so far private, back and forth about abortion.

The next opportunity for the justices to clear up the mystery and announce what they'll do with the case is today.

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Supreme Court arguments are intended to answer questions, but Solicitor General Noel Francisco created some confusion in the closing moments of his defense of President Donald Trump's travel ban last month.

Neal Katyal, representing opponents of the ban, hammered away at his contention that Trump had never disavowed campaign statements calling for a ban on Muslims entering the United States. Had he done so, Katyal said, it would have eliminated the argument that the travel policy Trump first imposed a week after taking office discriminates against Muslims in violation of the Constitution.

Responding to Katyal, Francisco told the justices that the president "made crystal-clear on Sept. 25 that he had no intention of imposing the Muslim ban."

Problem was, Trump didn't make any such statement on Sep. 25, the day after he announced the current version of the travel ban.

Francisco soon corrected himself, sending a letter to the court that he meant to refer to a Jan. 25, 2017 interview in which Trump said the policy he would announce two days later would not be a Muslim ban. "No, it's not the Muslim ban. But it's countries that have tremendous terror," Trump told ABC News.

In Francisco's view, the matter was settled. But critics of the policy said Trump's statements on the topic have been anything but crystal-clear.

Immediately after the April 25 arguments, the White House press office refused to say whether Trump had disavowed his campaign pledge to bar Muslims.

Trump responded to a question at a recent news conference by declining to say he was sorry for his campaign rhetoric. "I think if I apologized, it wouldn't make 10 cents worth of difference to them. There's nothing to apologize for," he said, referring to opponents of the travel ban.

Another indication was that the Trump campaign website retained the Muslim ban pledge until May 2017, after the first and second versions of the travel policy had been issued, Leah Litman, a University of California at Irvine law professor, and Josh Geltzer, a former National Security Council official who is now at Georgetown University's law school, have noted.

One other thing that may not be clear until the court issues its decision, probably in late June: Whether any of this matters to the justices, who after all allowed the current policy to take full effect in December.

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Lawyers who argue at the Supreme Court will sometimes squirm with impatience when Justice Stephen Breyer gets going with a question or two. Or three. Or four.

It's no secret that Breyer likes to talk.

Now a Supreme Court watcher has catalogued just how much. 52,451 words. That's how many words Breyer spoke at the court's 63 arguments, says Adam Feldman, creator of the Empirical Scotus blog. That amounts to more than a fifth of all the words the justices uttered during the term's arguments.

Justices Sonia Sotomayor and Elena Kagan came after Breyer, with just over and just under a sixth of the court's total arguments verbiage, respectively.

Chief Justice John Roberts and Justices Samuel Alito, Neil Gorsuch, Ruth Bader Ginsburg, Anthony Kennedy and Clarence Thomas followed.

Even when Breyer isn't asking a question, he can sometimes be seen talking privately with Thomas, his seatmate.

The court's anti-Breyer, Thomas last asked a question in February 2016 - and that was after a 10-year gap between questions at arguments.

Published: Mon, May 14, 2018

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