Court begins at 10, but we had to be there between 9 and 9:30. There’s a line out front of people hoping to get a seat, but since we had reserved seating, we bypassed that line. We entered to the left of the big steps, and went through the first level of security. Then we were directed to another guard, who showed us to lockers where we could store our belongings. The only things you can take into the court are a pad of paper and a writing instrument. After we put our stuff in a locker, we were sent to the Marshall, who checked off our name, put us through another security check, and directed us to the nice young women who were seating people. We had to wait there until there were enough people to fill a row, and then we were all led into the courtroom to be seated.
The courtroom is appropriately awesome. Probably 50 feet high, with 8 columns on each side and 4 in front and back, marvelous friezes carved above the columns and rosettes in the ceiling, quiet was required at all times in the room. If the sound got about the barest whisper, a frowning man with a buzz cut, and earpiece, and a wrist mic asked us all to keep our voices down, please. Members of the bar sit in seats behind the attorneys arguing the case, the press sits on the left, and guests of the justices sit on the right. There were a number of attorneys being admitted to the bar today, so that section was fairly full.
At 9:45, the attorneys arguing the case came in, and around this time, aides were bringing in papers and drinks for the justices and arranging things to their liking. (Justice Breyer drinks tea.) At 10, we all rise, the justices come in, and we’re off.
Today, Justice Ginsburg first read an unanimous opinion from the court in Bravo-Fernandez. RBG looked really frail to my eyes, and her voice was hoarse. Her jabot was quite sparkly, though. After Ginsburg read the opinion, the attorneys being admitted to the SCOTUS bar were presented and sworn in, then it was time for argument.
Mr. Chief Justice, and may it please the court…
The issue in Moore v. Texas concerns the criteria used by Texas to determine whether someone is too intellectually disabled to be executed. In Atkins v. Virginia, the court had determined that intellectually disabled people could not be executed, and in Hall v. Florida, the court had ruled that the determination of intellectually disability should be informed by medical standards. Texas, instead, uses a standard from Briseno, which claims that medical standards are too subjective, and seems to allow for a standard based on what Texas citizens would judge to be intellectually disabled.
Sloan, the attorney for Moore, was making the case that Texas didn’t use clinical standards to determine intellectually disability, instead relying on a framework that depended on stereotype and vagueness and in fact, was counter to clinical standards. A defendant could be determined by experts to be intellectually disabled and still not meet the standards in Texas. Keller, the Solicitor General of Texas, argued that Texas did use a system consistent with the SC opinions because the court had given the states leeway in how to apply the opinion and because Texas used a three prong test as laid out by the court. In effect, he was arguing that we do use modern clinical standards, and even if we don’t, it doesn’t matter.
The challenge in this case, as highlighted by Justice Breyer, is that it involves a defendant of mild intellectual disability. It’s a borderline case; how do we set the border? Justice Sotomayor asked Keller if Texas had found any mildly disabled defendant unworthy of being executed, and Keller didn’t really have an answer for her.
Justice Alito was pretty hostile to Sloan, CJ Roberts didn’t say much but seems unlikely to be friendly, and Justice Thomas, of course, didn’t say a word. He spent a lot of time leaned back in his chair (the justices have chairs that rock back), looking up at the ceiling, or talking to an aide about something. Justices Kennedy, Breyer, Ginsberg, Kagan, and Sotomayor all seemed friendlier to Sloan than to Keller, for what that’s worth, so it seems possible at least that Moore’s death penalty will be overturned and Texas’ criteria will be forced to modernize some. Had the election turned out differently, the end of the death penalty might be in sight, but I don’t think Kennedy can be pushed that far now.
On a gossipy note, I saw Nina Totenberg in the courtroom, and Eliot Spitzer was there for some reason. I had lunch afterwards with an ACLU attorney, and got to meet the retiring legal director of the ACLU, Steve Shapiro, before he caught the train to NY. This was his last time at the court as the legal director; his last day is Friday. He’s done a lot of great work for the ACLU, and I’ll miss him on the end of term conference calls the ACLU does wrapping up the SC cases.