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An unusual appeal and a chatty Supreme Court justice

Court has yet to rule on appeal over pregnant immigrant teenager; justices get a word count

WASHINGTON — Spring is the season of mystery at the Supreme Court.

The courtroom arguments are done, but the big cases have yet to be decided. Is a justice retiring? (So far no, but check back here frequently.)

Another puzzle this year concerns an unusual appeal the Trump administration filed more than six months ago, calling out ACLU lawyers as dishonest in a dispute over a pregnant teen-aged immigrant who wanted an abortion.

The justices have yet to act on the appeal, although they’ve had it on their list of cases to deal with since January. Most cases on the list are dispatched within weeks. The exception tends to be when there’s disagreement about what to do and a justice wants to express his or her displeasure in writing.

The case the justices are mulling involves a teen who entered the U.S. illegally in September and learned while in federal custody in Texas that she was pregnant. The unidentified teen obtained a state court order permitting her to have an abortion and secured private funding for it, but federal officials refused to transport her or temporarily release her so that others could take her to get the procedure.

The ACLU helped the teen sue the Trump administration, a federal appeals court ruled in her favor in October and she had the abortion about 14 hours later.

The administration cried foul in its appeal to the high court, saying the ACLU misled government lawyers into believing they had another day to ask the justices to block the procedure, at least temporarily. But the abortion took place before any appeal was filed.

The ACLU responded that its lawyers made no commitments about the timing of the abortion and noted that the 17-year-old had to continue her pregnancy for a month after a judge permitted her to have an abortion.

The lingering dispute is over what becomes of the appeals court decision in favor of the teen. Underlying the case is not only the contentious issue of abortion, but also the administration’s controversial policy of preventing immigrant teens in its custody from having an abortion, no matter how they became pregnant and even if a judge has signed off.

The justices are sticklers for the fine details, and whatever is causing the delay could be attributable to a disagreement over legal procedures. But there also could be some intense, so far private, back and forth about abortion.

The next opportunity for the justices to clear up the mystery and announce what they’ll do with the case is Monday.

Breyer’s tops

Lawyers who argue at the Supreme Court will sometimes squirm with impatience when Justice Stephen Breyer gets going with a question or two. Or three. Or four.

It’s no secret that Breyer likes to talk.

Now a Supreme Court watcher has catalogued just how much. 52,451 words. That’s how many words Breyer spoke at the court’s 63 arguments, says Adam Feldman, creator of the Empirical Scotus blog. That amounts to more than a fifth of all the words the justices uttered during the term’s arguments.

Justices Sonia Sotomayor and Elena Kagan came after Breyer, with just over and just under a sixth of the court’s total arguments verbiage, respectively.

Chief Justice John Roberts and Justices Samuel Alito, Neil Gorsuch, Ruth Bader Ginsburg, Anthony Kennedy and Clarence Thomas followed.

Even when Breyer isn’t asking a question, he can sometimes be seen talking privately with Thomas, his seatmate.

The court’s anti-Breyer, Thomas last asked a question in February 2016 — and that was after a 10-year gap between questions at arguments.


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