Northwest Arkansas Democrat-Gazette
Supreme Court’s newest justice takes seat on bench
WASHINGTON — Brett Kavanaugh took the bench with his new Supreme Court colleagues for the first time Tuesday in a jovial atmosphere that was strikingly at odds with the tension and rancor surrounding his highcourt confirmation.
The new justice dived into his job, asking a handful of questions in the first arguments of the day after a traditional welcome from Chief Justice John Roberts, who wished Kavanaugh “a long and happy career in our common calling.”
Kavanaugh took his seat at the end of the bench to Roberts’ far left, the spot reserved for the most junior justice.
His path to confirmation was turbulent — opposition to him intensified after Christine Blasey Ford accused him of sexually assaulting her decades ago, when they were teenagers. Kavanaugh denied it.
In court, Kavanaugh asked questions of both sides in arguments over increased prison sentences for repeat offenders. He jumped in with his first question after most of the other justices had spoken.
Questions from Kavanaugh and Justice Neil Gorsuch, President Donald Trump’s two high-court picks, suggested they could vote against the Trump administration and side with a criminal defendant from Florida who is fighting an increase in his sentence from just over six years to possibly
more than 15 years.
As Gorsuch did in his first arguments last year, Kavanaugh focused heavily on the importance of following earlier decisions of the court. Both men testified about their respect for Supreme Court precedent, though Gorsuch already has been in the majority to overrule four high-court rulings.
There were no disruptions in the courtroom.
The arguments had a notably light tone. Several justices asked whether pinching amounts to violence and Justice Sonia Sotomayor appeared to playfully pinch Gorsuch. A lawyer for a criminal defendant said that pinching Arnold Schwarzenegger might not amount to violence if he was “uniquely immune to pain.”
Roberts asked how hard it is to wrest a dollar bill from a clenched fist and said he had experimented with his law clerks.
“It requires a lot of force,” he said, “more than you might think.”
The arguments were interrupted by laughter more than a dozen times.
At the end of arguments, Justice Elena Kagan, seated next to Kavanaugh, offered a handshake. They also chatted privately before the arguments began. From time to time, Kavanaugh put on reading glasses to glance at papers in front of him.
Kavanaugh’s wife and two daughters were in seats reserved for justices’ guests, along with retired Justice Anthony Kennedy.
Kennedy’s presence in the courtroom underscored the changing of the guard on the bench. Kennedy was a more moderate conservative who sometimes sided with the court’s four liberal justices. Kavanaugh, in contrast, is expected to be a more decidedly conservative vote, tilting the court right for decades and leaving Roberts as the justice closest to the ideological middle.
There was a long line of people hoping to see Kavanaugh’s first appearance. Police put up barricades in front of the court, but some protesters arrived before sunrise with signs and shirts and red robes pulled from The Handmaid’s Tale.
“Some people say it’s of no use to do this, because Kavanaugh is on the court anyway, but it’s important to stand in our power and be heard, to say, ‘No, we do not consent to this,’” said Lisa Fithian, an activist from Austin, Texas, who organized Tuesday’s protest. “I am tired. It’s been an emotional time. But I feel this is something we have to do.”
THREE-STRIKES STATUTE
The law under consideration in Tuesday’s arguments, the Armed Career Criminal Act, is a kind of three-strikes statute. It requires stiffer sentences for people convicted of possessing firearms if they have earlier been found guilty of three violent felonies or serious drug charges in federal court.
The first case, Stokeling v. United States, No. 17-5554, concerned a part of the law that defined violent felonies to include any offenses involving the use or threat of physical force. The question in the case is whether minimal force, as in a purse snatching, is enough.
The case involves Denard Stokeling, who pleaded guilty to possessing a gun after burglarizing a restaurant in Miami Beach, Fla. He had three earlier convictions, and prosecutors argued that they required a much longer sentence than the one the gun charge would ordinarily have warranted.
Stokeling objected, saying his 1997 conviction for “unarmed robbery” in state court, arising from a snatched necklace, did not amount to a violent felony. That meant, he said, that he should face only a maximum sentence of 10 years rather than a minimum sentence of 15 years.
The court also considered another part of the same law in two other cases — United States v. Stitt, No. 17-765, and United States v. Sims, No. 17766 — consolidated for a single hour of arguments.
The law says burglaries are violent felonies that can require longer sentences. But it does not specify what qualifies as a burglary.
The Supreme Court has said the crime requires invasion of “a building or structure.” But the defendants in the two cases — Victor Stitt of Tennessee and Jason Sims of Arkansas — were convicted under state laws that allow prosecutions of burglaries of mobile homes and other vehicles in which people sleep.
Justice Samuel Alito expressed frustration with the court’s interpretations of the firearms law generally.
“In my humble opinion, in this area, we have made one royal mess,” he said. “Maybe we ought to go back and correct our own mess.”
But Kavanaugh said the law worked well enough in the typical case, as when someone is caught repeatedly breaking into recreational vehicles.
“I think if you’re convicted three separate times of breaking into an RV,” he said, “you would be on some notice that you shouldn’t be possessing a firearm under federal law.”
MOVING IN
Republicans had hoped to confirm Kavanaugh by Oct. 1, the start of the new term. Instead, the former D.C. Circuit judge missed the first week of arguments as the Senate considered Ford’s allegation that he had sexually assaulted her in high school.
Kavanaugh has had busy days since he was confirmed 50-48 on Saturday. That evening, he took his oaths of office in a private ceremony at the Supreme Court while protesters chanted outside the court building.
And on Monday evening he was the guest of honor at a ceremonial swearing-in at the White House. While Trump apologized on behalf of the nation for “the terrible pain and suffering” Kavanaugh and his family had experienced and declared him “proven innocent,” the new justice assured Americans that he would be fair and was taking the job with “no bitterness.”
The other eight justices also were at the White House on Monday.
Kavanaugh has also begun moving in to his new office at the Supreme Court, taking over space previously used by Alito, who moved into offices vacated by Kennedy. Kavanaugh has also hired four clerks, all women, the first time that has happened.
Today, the only other day of arguments this week, the court will hear another two hours of arguments. One of the two cases involves the detention of migrants, an issue on which Kavanaugh’s vote could be key.
Although he missed the court’s first week, none of the six cases argued dealt with blockbuster issues. They included a case about a potential habitat for an endangered frog and another about an Alabama death row inmate whose lawyers argue he shouldn’t be executed because dementia has left him unable to remember his crime. Kavanaugh won’t vote in those cases, but if the court is split 4-4, it could decide to have those cases reargued so Kavanaugh can break the tie.
As the newest member of the court, Kavanaugh will take on a few special jobs. He will take notes for the justices when they meet for private conferences. He’ll also be the one to answer the door at those meetings if someone knocks to deliver something such as a justice’s coffee or forgotten glasses.
He’ll also sit on the committee that oversees the court’s cafeteria, which is open to the public. Roberts has previously said that assignment is a way of bringing a new justice “back down to Earth after the excitement of confirmation and appointment.”