Justice Brett Kavanaugh (Photographer: Andrew Harrer/Bloomberg)

Here’s What It Was Like Inside Justice Kavanaugh’s First Supreme Court Argument

(Bloomberg) -- Justice Brett Kavanaugh’s first morning on the Supreme Court provided a few moments of comic relief after his bitter confirmation fight.

Two hour-long arguments Tuesday were sprinkled with jokes, displays of courtesy and a stream of questions from the new justice on the reach of a law that imposes stiff sentences on some people convicted of federal gun crimes.

Kavanaugh shared a private laugh with Justice Elena Kagan before the arguments as new attorneys were being admitted to the Supreme Court’s bar. Kavanaugh then waited about 20 minutes before asking the first of about a dozen questions he posed during the morning.

Jokes abounded during the session. At one point, Justice Sonia Sotomayor playfully pinched Justice Neil Gorsuch’s robe to illustrate a question about the reach of the federal statute that was at issue. Gorsuch reacted with feigned surprise, bringing the packed courtroom to laughter.

The acrimonious confirmation fight over Kavanaugh has cast a cloud over a Supreme Court that prides itself on being above partisan politics. Protests erupted in Washington in recent days, and they continued Tuesday outside the court, though there were no disruptions in the courtroom.

Apology to Kavanaugh

President Donald Trump stoked partisan fires Monday night during a White House swearing-in ceremony attended by all the justices. The president declared Kavanaugh innocent of sexual-assault allegations and told the justice’s family he wanted to apologize “on behalf of our nation.” The controversy presents a challenge for Chief Justice John Roberts, a conservative who has worked to protect the court’s reputation as a trusted arbiter of the law.

Protesters arrived in front of the Supreme Court building an hour before the arguments began -- most of them women and some dressed as characters from "The Handmaid’s Tale," carrying signs that said “Unfit to Serve” and “Kava-Nope” and chanting anti-Kavanaugh slogans such as “We do not consent!”

But inside it was mostly collegiality, perhaps helped by the relatively low stakes in the technical cases before the court. Kavanaugh’s wife and two daughters were in the audience, as was his former boss, retired Justice Anthony Kennedy, whom Kavanaugh served as a law clerk in 1993-94. Roberts began the session by welcoming Kavanaugh and wishing him a "long and happy career in our common calling."

The two cases involved the 1984 U.S. Armed Career Criminal Act, which imposes a mandatory 15-year sentence on people convicted of federal gun crimes if they already have three convictions, under either federal or state law, for serious drug offenses or violent felonies. The court has grappled repeatedly with the exact reach of ACCA, as the law is known, mostly trying to determine what sorts of state-law crimes qualify.

Unarmed Robbery

The first case centers on Denard Stokeling’s 1997 Florida conviction for unarmed robbery. A federal appeals court said that conviction qualified under the ACCA because the Florida crime requires at least some physical force. Stokeling contends that, under Florida law, unarmed robbery can involve almost no force, as in the case of a purse-snatching.

Kavanaugh asked each side how to square its position with a 2010 Supreme Court ruling, known as Curtis Johnson v. United States, that sided with a defendant who had been convicted of felony battery in Florida.

That ruling "says ‘substantial degree of force,’" he told a Justice Department lawyer. "How are we supposed to deal with that language in the Curtis Johnson opinion if we’re trying to follow Curtis Johnson strictly?"

The second case involves two men who were separately convicted of burglary, one in Tennessee and one in Arkansas.

Although ACCA lists burglary as an offense that can be considered a violent felony, federal appeals courts said the crimes in the two cases didn’t qualify because Tennessee and Arkansas defined burglary so broadly it included breaking into a vehicle that doubles as a home.

Kavanaugh directed all his questions in that case at the lawyer representing the two defendants.

Justice Samuel Alito provided a sour note, criticizing the court’s reasoning over the years in interpreting the statute.

"A majority of the court really hates ACCA and is picking it apart bit by bit by bit,” he said. He added later, “We have made one royal mess.”

As the justices stood up to leave the bench, Kagan reached over to shake Kavanaugh’s hand. He smiled and mouthed “thank you.”

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