“Why does your conception of this not relate in any way to the main purpose of Congress?” Jackson asked Damien Schiff, an attorney defending landowners seeking a narrow interpretation of federal power. “Do you dispute that the primary purpose, as stated in the law…is that Congress cares about ensuring that the chemical, physical, and biological integrity of the nation’s waters is protected?”
Jackson remained an active questioner throughout the argument, getting aides from several colleagues, including judges Sonia Sotomayor, Brett Kavanaugh and Amy Coney Barrett, who pressed Schiff to answer his questions.
Indeed, Jackson was so vocal that his questioning helped extend the scheduled time for arguments to two hours. Jackson seemed to realize she was testing the patience of Chief Justice John Roberts. After Roberts called her into the argument, she sounded a bit sheepish and prefaced one of his questions with, “Sorry. …” Then she asked for two follow-ups.
Later, during what was supposed to be a two-minute rebuttal argument, Jackson interrupted Schiff to ask another question — followed by at least three follow-ups. As the attorney responded, Roberts could be seen writing a note, folding it, and delivering it to a page, who delivered it to Jackson. She opened it and read the message. It’s unclear what he said, but the arguments in that case ended moments later.
Despite public tensions in recent months among some members of the court, as well as tensions caused by security alerts and an investigation into the leaks, the judges seemed quite relaxed. The seats of most judges have been redesigned following the retirement of Judge Stephen Breyer.
Judge Neil Gorsuch smiled broadly as the session began and chatted casually with one of his new neighbors, Sotomayor. He also deferred to Jackson once, who responded with praise, of sorts.
“I just wanted to follow up on Judge Gorsuch’s very fair points, which were my points,” she said.
Kavanaugh also tried at least once to get Roberts’ attention for a question from Jackson, who is seated to Kavanaugh’s left.
Kavanaugh and Judge Elena Kagan shared a private joke at one point, though her reaction has been harder to gauge since she joined Sotomayor as the only judges to wear face masks during arguments.
There were fewer signs of friendship between two other new neighbors, Kagan and Judge Samuel Alito. Alito sometimes looked pained during Monday’s arguments and sometimes rested his forehead on his index fingers or his chin on his thumbs.
In a series of public appearances over the past few weeks, Kagan has repeatedly raised doubts about the tribunal’s methodology and said the tribunal’s reputation has been undermined by the perception that it is not guided by legal principles.
Both Alito and Roberts pushed back against such criticism, arguing that disappointment or disagreement with a decision should not affect the court’s legitimacy.
The general tenor of Monday’s arguments was less divisive and caustic than some of the arguments last year, including in the pivotal abortion case where Sotomayor accused the court of not ‘surviving the stench’ of the reversal . Roe vs. Wadewhich she did in June by a vote of 5 to 4.
The new term’s early arguments had a folksy tone at times, often resembling Old House week as at least three judges invoked their roots while trying to make points or ask questions in the case of the water regulation, which comes on when certain wetland properties near rivers or lakes are subject to federal regulation.
“I grew up in an apartment building in New York City,” Kagan shared, explaining that she considered two buildings across from each other “adjacent” even if they weren’t touching.
“I grew up in the Georgia Low Country and you had standing water. It was normal,” Judge Clarence Thomas said as he pressed Deputy Solicitor General Brian Fletcher to explain whether the frequently flooded land was or not covered by the Clean Water Act.
Barrett, who now lives in northern Virginia and passed through Indiana, also got in on the action.
“I grew up in New Orleans,” Barrett said. “The whole thing is below sea level. So, you know, there are aquifers flowing just below. … We don’t have basements because, you dig pretty deep in anybody’s yard, you hit the water, and it all goes into Lake Pontchartrain and the navigable waters of the Mississippi River.
Although she may have been tempted, Jackson offered no similar anecdote of being raised in Miami, which is only about six feet above sea level on average and is regularly flooded by storms.
However, some of Jackson’s questions in both the water case and in a later money order-like product case seemed to pay homage to his predecessor and court mentor, Breyer, who often sought to interpret federal laws based on congressional intent or purpose.
Roberts may not be the only one eager to see the arguments wrap up on Monday. Thomas, who at 74 is now the oldest member of the court, briefly went behind the curtain at one point as the session stretched. And Gorsuch barely left the bench before ripping off his black judge’s robe and handing it to an aide.
The justices are scheduled to return to the courtroom on Tuesday for arguments on the Alabama suffrage cases, before holding a closed-door conference on Friday to discuss this week’s cases as well as other issues.