Sittin’ Courtside, Breyer & Scalia Give Me Hi-Fives
Due to work-related travel, and the insanity that goes into buying a house in under a month, posting has not been a top priority recently. However, I thought I would give a quick update on a rather nerdcore political event I participated in yesterday: sitting in on oral arguments at the Supreme Court. While this is a certain type of break from my recent Tea Party observations, it is relevant in so far as it does have to do with our government. And its “goodness.”
So, a few observations:
1) If you go to hear the Court, you’ve got to get up early. Only the first 50 people in-line to hear the argument are guaranteed a spot to get in, so staking a claim is important. I got in line by 5:20 AM and was awarded place-holder #26 for the arguments that begin at 10:00 AM. And this card was not given to me by a guard until 7:45 AM. So it was a long, cold wait.
2) I did get to chat with line leader Mike Sacks, Georgetown 3L (in)famously known for First One @ One First, an absolute must-read for anyone planning on visiting the Court or interested in contemporary constitutional law. It was great to learn he was a fellow Duke grad and had enjoyed quite a few shows at Chapel Hill’s Cat’s Cradle, indie rock central for the Triangle.
3) In our pre-dawn discussion, Mike voiced his love of The Brethren, an Armstrong and Woodward SCOTUS tell-all that caused much controversy when it was published in the ‘late 70s with its inside look at the Burger Court and which I tried to read in high school and now need to re-read. Anyway, he made an interesting case for Potter Stewart as being the last “pure judge” on the Court, meaning, I think, that he was appointed outside of the ideological box that has been present in judicial discourse since the late ’70s. One could make the case that Stevens also fits this bill, at least at his appointment, though he has drifted further and further to the left in reaction to the Rehnquist/Scalia conservatism that emerged in the late ’80s, a conservatism which now generally wins if the current Court splits 5-4 (see Citizens United). I’d like to look into this more, but my initial thought is that Roe might be responsible for this divide, much in the same way as West Coast Hotel v. Parrish could be seen as the dividing line for the modern interpretation of the Commerce Clause. In other words, judges appointed after Roe have the ideological boxes of the culture wars to deal with before they get on the Court just as judges after West Coast Hotel had the necessity of having a robust interpretation of the Commerce Clause as requisite for getting on the Court. But maybe that’s a bit of a convoluted analogy. A way to say it simpler might be: Roe v. Wade has been the benchmark case since 1973 for determining who gets on the Supreme Court (either supportive or against), and Stewart didn’t have to deal with that hanging over his confirmation. Interesting discussion, anyway.
4) Once I got into the Courtroom, roughly 5 hours after getting there, I got to hear two opinions announced, one read by Scalia and one by Stevens. Given that this is probably Stevens’ last term on the Court, I thought that was pretty awesome.
5) Justices Thomas and Scalia no doubt vie for largest Justice, with Ginsburg clearly the smallest. Whereas Scalia and Thomas like to rock back in their chairs and share notes during the arguments (which I swear at one point was probably an internet forward judging by Scalia’s reaction), Ginsburg often slumps over in her chair. I was unsure whether she was taking notes, about to go to sleep, or furiously texting Sandra Day. Given her age and health, it’s probably the middle of these two.
6) Justice Breyer, who is probably my favorite Justice on the court, is like a cartoon character in-person. He annunciates his questions with a professorial affectation, often puts his hands to his face, leans over the microphone and clearly enjoys “cutting-up,” to some degree. My two favorite moments of his came when he 1) referred to a prior case by saying: “Yes, I’m familiar with the argument, I mean I’ve written several opinions on this issue, some even in the majority!” (which caused courtroom laughter), and 2) when he prefaced a hypothetical example of how a statute could be interpreted by saying: “You have heard of cat burglars. Well, this gentleman is called the pussycat burglar because he never harmed a soul.” The turn of phrase seemed more appropriate for use alongside a “Heavens to Murgatroid!,” and served as yet another example that most of the Supreme Court Justices are culturally far out of date. But it was funny on multiple levels.
7) In the second case heard yesterday, Solicitor General Elena Kagan argued as an amicus counsel for the government. While her argument was brief, it was noteworthy for a bit of a confrontation with Scalia. After repeatedly having her submissions for whom a plaintiff should actually represent in a hypothetical situation nixed by Scalia, Kagan paused for a moment before asking, “Who would you have, Justice Scalia?” The direct question caused courtroom laughter, and a briefly flustered Scalia, who responded a bit lamely: “Well, I’m not the one making the argument!” What makes this exchange even more interesting is the fact that most everyone puts Kagan on the top of Obama’s short-list to replace Stevens. So, I could have seen the next Supreme Court Justice spar with the second-most senior Justice. For what it’s worth.
So, those are my thoughts from an exciting, albeit exhausting, morning at the Court. Now, I promise my next post will return to my Glenn Beck dissection or some other fun libertarian treat. Hopefully.
A longer sentence brings no more, than one I had said before