One Justice Missing and Only One Masked, the Supreme Court Returns

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As a term full of major matters begins, much has changed since the last personal debate in March 2020.

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WASHINGTON – The Supreme Court returned to its mahogany bench on Monday after a pandemic-induced absence of more than 18 months, beginning a new term that will include major cases on abortion and gun rights.


Monday’s first case on water rights was routine. But the courtroom had changed as the court last heard the arguments in person in March 2020.

As a result of a positive Covid-19 test obtained by Justice Brett M. Kavanaugh on Thursday, the leftmost seat was vacant. A spokesman for the court said he ran away from his home. Their questions were placed in the courtroom.

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The far right seat was occupied by this member of the court, Justice Amy Connie Barrett, who was making her first appearance in a personal argument.

Justice Sonia Sotomayor was the only member of the court who wore a mask.

Justice Anthony M. Kennedy, who retired in 2018, joined the debate, sitting in the section of the courtroom reserved for dignitaries. He was wearing a mask.

Justice Clarence Thomas, who rarely voiced inquiries from the bench before the pandemic, asked the first questions from both lead lawyers in the case.

Apart from presenting the arguments, the lawyers were wearing masks. The lecture in which he gave his presentations was taken several feet behind the bench.

The public was kicked out of the courtroom, but the court is making live audio available on its website. Members of the media were scattered in the front rows of the courtroom, a change from their usual places on the benches to the left of it. The court required journalists to be tested for coronavirus and wear N95 masks.

The judges asked questions in the familiar free-for-all fashion that has long been their practice. But he supplemented such free-form inquiries with the opportunity to ask questions one by one in order of seniority following each lawyer’s arguments, copying the format used in telephone arguments exiled from the court. Was.

Most of the judges declined the opportunity to ask questions during the one-on-one round.

The case, Mississippi v. Tennessee, No. 143, relates to a claim by Mississippi that Tennessee was drawing too much water from an aquifer beneath those states and several others.

The judges were skeptical of the logic. “You assume that Tennessee doesn’t enter the Mississippi across the border, isn’t that correct?” Justice Thomas asked Mississippi attorney John V. Coglan. “Couldn’t Tennessee make the exact same argument about you?”

Justice Elena Kagan said that “Tennessee is operating completely within its limits.”

Justice Barrett cast doubt on whether there should be separate court rules for water on the Earth’s surface and water below it.

Some judges asked colorful fictional questions. Chief Justice John G. Roberts Jr. wondered whether Tennessee could keep wild horses that roamed the state line. Justice Stephen G. Breyer asked about the ownership of the fog in San Francisco.

“Let’s say someone got on a plane and took some of that beautiful fog and flew over to Colorado, which has its own beautiful air,” he said. “And someone took it and blew it up in Massachusetts or some other place.”

“Do you understand how I’m seeing this all of a sudden and I’m completely at sea?” He asked. “It is such that the water runs here and there. And whose water is it? I do not know.”

Chief Justice Roberts wondered whether it made any difference that the water had to be separated from the silt on the issue. “If someone showed you, you know, a handful of silt, they wouldn’t say, oh, it’s water,” he said.

David C. Frederick, a Tennessee attorney, assured the Chief Justice that getting the water out was worth the effort.

“I guess you’d say it’s water,” he said, “because it’s some of the best water that anyone can drink in the United States. This artesian water is absolutely fabulous water that they’ve pumped and they put it on filters.” Which filters out some iron and some other minerals.

“It’s very pure water,” he said, “and it’s delicious.”

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