Amy Coney Barrett testifies during her confirmation hearings last month. The new justice heard her first arguments Monday as a member of the U.S. Supreme Court. Andrew Caballero-Reynolds/Pool via AP
New Supreme Court Justice Amy Coney Barrett heard her first oral arguments at the Supreme Court on Monday. Participating by phone with the other justices, a practice followed by the court since the coronavirus pandemic, she asked questions in turn in a set of cases that presented difficult procedural questions but no headlines.
The court said she did not participate in the court's work last week after being sworn in so she would be prepared for oral arguments this week.
The telephone format allows each justice only a few minutes to ask questions so there was no way to compare Barrett's questioning with other newbies in recent years.
During his first argument in 2017, Justice Neil Gorsuch asked 22 questions, a half-dozen in a row, about 10 minutes into his first argument. In 2018, Justice Brett Kavanaugh was more reticent, waiting 20 minutes into his first argument before speaking. But the current pandemic format is in order of seniority, and the time for each justice is short.
Barrett could well be forgiven for bowing out of the court's work last week, with six days to prep before her Monday debut. But Chief Justice John Roberts also had just six days to prepare in 2005, and in 1987 Justice Anthony Kennedy had even fewer — four days.
Barrett's choice to forgo participating last week meant she did not vote in two significant cases decided by the court in opinions released Monday. A 7-1 vote decided each case, with Justice Clarence Thomas dissenting in both.
First Amendment case
In an important First Amendment case involving a Black Lives Matter protest, the court sided with activist DeRay Mckesson in his effort to avoid a lawsuit by a police officer who was severely injured by an unknown assailant.
The demonstration took place on a highway in Baton Rouge, La., to protest the shooting death of an African American man at close range by police. The officer suffered injuries from a rock thrown by one of the protesters.
Mckesson did not throw the rock, but the police officer sued on the theory that the activist was still liable for damages because he negligently led the protest in a manner that caused the assault. A divided three-judge panel of the 5th U.S. Circuit Court of Appeals allowed the suit to go forward, ruling a jury could plausibly find against Mckesson because "a violent confrontation with a police officer was a foreseeable effect of negligently directing a protest" onto the highway.
The full appeals court deadlocked on whether to review the panel's decision, and Mckesson appealed to the Supreme Court, contending that even if his role in leading the protest onto the highway was negligent, it couldn't make him personally liable for the actions of an individual whose only association to him was attendance at the protest.
On Monday, the Supreme Court threw out the suit for now, declaring that the 5th Circuit's interpretation of state law "is too uncertain a premise on which to address" the question currently at issue.
The constitutional question — namely whether such a suit violated the First Amendment guarantee of free speech — is only raised if Louisiana law in fact permits such a suit in the first place, the court said. Acknowledging these "exceptional circumstances," the high court, in essence, then asked the Louisiana Supreme Court to decide what the state law actually is — in short, whether Louisiana would permit such a suit.
Eighth Amendment case
In a second case — involving cruel and unusual punishment of a prisoner — the justices also repudiated a 5th Circuit decision.
This one involved a Texas state prisoner, Trent Taylor, who alleged that for six days in 2013 he was held in what the court called "shockingly unsanitary cells." The high court described those conditions in detail:
"The first cell was covered nearly floor to ceiling in massive amounts of feces; all over the floor, the ceiling, the window, the walls, and even packed inside the water faucet. Fearing that his food and water would be contaminated, Taylor did not eat or drink for nearly four days. Correctional officers then moved Taylor to a second, frigidly cold cell, which was equipped with only a clogged drain in the floor to dispose of bodily wastes. Taylor held his bladder for 24 hours but he eventually (and involuntarily) relieved himself, causing the drain to overflow and raw sewage to spill across the floor. Because the cell lacked a bunk, and because Taylor was confined without clothing, he was left to sleep naked in sewage."
After reciting these findings by the lower court, the Supreme Court noted that the 5th Circuit "properly held that such conditions ... violate the Eighth Amendment's prohibition on cruel and unusual punishment." But the appeals court went on to say that the prison officers responsible for this treatment could not be sued because the law "wasn't clearly established" that "prisoners "couldn't be housed in cells teaming with human waste" "for only six days." Thus, the 5th Circuit granted the officers qualified immunity from being sued.
That was too much for seven Supreme Court justices. "Confronted with the particularly egregious facts of this case, any reasonable officer should have realized that Taylor's conditions of confinement offended the Constitution," they wrote.
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