FIRST ONE @ ONE FIRST

F1@1F’s Farewell

Posted in F1@1F Friends by Mike Sacks on April 3, 2011

Friends–

On Friday I posted my part in an April Fool’s joke.  But this post, sadly, is no joke.

When F1@1F turned one year old at the end of this past December, I posted a short thank-you for your making F1@1F a deeply satisfying project.  At the time, I hadn’t realized that just a few months later, I’d have to re-extend those sentiments upon the closing of this site.

Tomorrow, I will be starting as a first-year associate at a law firm here in DC.  When I leave for work in the morning, I will be taking F1@1F off the air.  Accordingly, by the time many of you read this post in your morning email check or RSS sweep, the blog will be a memory.  Of course, due to my last batch of law school finals, intensive bar studies, getting a job offer, proposing to the First Lady of F1@1F, and preparing for the new gig, F1@1F has already been de facto wound-down.

Closing F1@1F will be bittersweet: while I’m incredibly proud of F1@1F and will miss having my own corner among Court watchers to contribute my commentary, I also feel very lucky to have a job in DC and a steady paycheck in a recovering-but-still-slow legal market.

Luckier still, my firm has assured me that it maintains a liberal publication policy.  So while this personal blog may disappear, I hope to return in due time as an active analyst in my firm’s own outlets or in op/ed pages across the country.

So I said it in December and I’ll say it again now: thank you all.  You have made this little project of mine into something far bigger than I had ever imagined.

-Mike

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Captive Audience in the Snyder v. Phelps Line

Posted in F1@1F Friends by Mike Sacks on October 14, 2010

Ryan Malphurs, the second-most ultimate Court watcher in my column from the first day of oral argument this term, also stayed overnight for the Snyder v. Phelps argument last week. He penned an open letter Op/Ed to the Court with a unique take on that night’s events, as well as his insights into overall state of the general admission line derived from his scores of sunrises on the sidewalk since 2006. With his permission, I’ve copied the column below.

Dear Mr. Chief Justice and May it please the Court,

The opportunity to observe Supreme Court oral arguments offers citizens a rare window into one of the Court’s most revered rituals. The Court offers a limited number of seats to the general public for each oral argument and distributes the tickets based upon the position in line for which the individual occupies. Motivated citizens can wait in line many hours or even days before a case to secure a seat in oral arguments. Citizens interested in the D.C. v. Heller case slept outside for three days prior to the Court’s distribution of tickets.

I love the egalitarian nature of this approach to oral arguments because it ensures that any citizen can gain admittance to the Court’s arguments. Only in line for Supreme Court oral arguments can you stand shoulder to shoulder with a homeless person, construction worker, law school student, and plaintiff or respondent (all were in line together on Monday). However, over the past few years conditions within the citizens’ line have grossly deteriorated contributing to injustice at the very site where justice should be most prominent.

Over the past four years I have observed more than fifty oral arguments and have made it a habit to attend the opening of the Court’s term every October. Another gentleman and fan of the Supreme Court has been attending the term’s opening arguments every October since 1989, an incredible feat. This past week I waited outside each day to gain entry into the Court’s oral arguments, but it was on Tuesday when I endured reprehensible behavior that I never believed would be tolerated at the Supreme Court.

In line on Tuesday afternoon for Snyder v. Phelps, I found myself directly behind Phelps’ supporters; throughout the day, evening, and early morning these supporters evangelized to the entire crowd, pacing up and down the line, questioning our religion, condemning us to hell, and calling us whores and fags among other things. For a few hours their antics were somewhat ridiculously humorous, but after nearly eight hours of intermittent condemnation their speech grew both offensive and bordered on the category of fighting words as the crowd grew angry and restless. During this time, police officers from the Supreme Court and the Capitol police observed from a distance, but did not intervene.

At 10pm those of us in line began preparing to sleep, hoping to get some rest before the next day’s oral arguments. However, as we laid down, the Phelps’ supporters began screaming at us, encouraging their children to take turns yelling to prevent us from sleeping. Lying in my sleeping bag, with an individual literally screaming into my ear, I could not help but note the irony of the situation. Much like Snyder v. Phelps, here we were a captive audience, unable to leave the line because doing so would have cost us our place. We were forced to endure the group’s objectionable vitriol. The Court has ruled in Frisby v. Schultz that “the First Amendment permits the government to prohibit offensive speech as intrusive when the ‘captive’ audience cannot avoid objectionable speech.” The Court has a designated area for groups and individuals to express their speech, and citizens waiting in line before oral arguments should not be forced to endure hours of hate ridden speech as a captive audience. I am angered that this type of speech, which is clearly not protected, was even tolerated by officers outside of the Supreme Court. Americans have come for centuries to the Court seeking protection, and we should expect, at the very least, constitutional protection from a group’s hatred when serving as a captive audience. I hope you make a similar determination in Snyder v. Phelps.

Adding insult to injury, while everyone was asleep the Phelps’ supporters decided to move their materials to the front of the line, usurping the position of those who had spent two nights out in the cold to be first in line, a fine example of Christian behavior. When the group of students who had originally been first in line complained to the police about the group’s movement, astonishingly the police refused to address the situation; only when the crowd grew riotous, at a group of twenty Phelps’ supporters joining the front of the line at 8am, did the police partially intervene, though surprisingly allowing the initial usurpers to remain even after a policeman acknowledged the group of students had been first in line for two days.

The egalitarian and often fair nature of the Court’s line for oral arguments has begun deteriorating over the years without any guidance from the Court, potentially disadvantaging the very citizens who hold the Court dear. Last year a tour company hired ten paid individuals to stand at the front of the line and hold spots for 60 of the company’s clients. The police again declined to intervene and the crowd’s aggressive nature frightened the operator who pulled the paid line holders from their places and abandoned his plan.

I am petitioning the Court to maintain the egalitarian and just nature of the line for oral arguments because these are active citizens who have spent days and nights outside to observe and participate in ritual of oral arguments. Citizens willing to endure such extremes are a rarity today and the Court should offer an orderly and secure environment, where these dedicated citizens should not have to endure the very same unprotected speech the Court has ruled against. Tolstoy has written that “where there is law, there is injustice,” but one should never expect injustice when standing before our country’s highest court.

For Malphurs, oral arguments have served as research for his Ph.D. work “regarding the cognitive influence of communicative interaction between the justices and advocates.” His paper, “Making Sense of ‘Bong Hits 4 Jesus': A Study of Rhetorical Discursive Bias in Morse v. Frederick,” served as the basis for his dissertation and is available on SSRN. I endorse the paper for all F1@1F readers, especially those interested in the intersection of law and communications

New Friends of F1@1F

Posted in F1@1F Friends by Mike Sacks on June 29, 2010

Ali Dierks, eighth in line and the first female at One First on Sunday night/Monday morning, has written up her experience on her blog, acd @ IUB:

At 1 am last night, I made the impulsive decision to go downtown and camp out on the sidewalk in front of the Supreme Court. Why camp out? To be sure I was one of the first in line, so I could get a number and be sure to get seated. It was a big day today, with some history-making business on the docket: Justice Stevens’s last day, the closing of the term, and two big cases – one on gun rights, the other about the Appointments Clause and executive authority more generally.

From the moment she arrived in line, Ali asserted herself as the sparkiest among us.  Characteristically, then, she gives a colorful recap of the evening and I encourage you all to read the rest here.

I concur with her discussion of General Lee Shelton, but must dissent from her impressions on some of those further back in line.  Overall, however, her rundown of the experience in entertaining and comprehensive.

I’ll be writing up my own thoughts and observations for the ABA Journal’s website soon.

UPDATE: My Usurper, Daniel Rice, also posted his own recap of the day.  Here’s his conclusion:

It’s hard to communicate the day’s excitement in a blog post driven by descriptions of events for the purpose of keeping friends and family apprised of my adventures, especially when the author has been awake for 35 hours, but I can’t emphasize enough that today was unlike anything I’ve ever experienced. To have witnessed a Supreme Court term’s final sitting (including the incorporation of one of the first ten Amendments), the retirement of a giant in the history of American law, and the Day One of a constitutionally prescribed rite of passage that will likely initiate another long and storied judicial career–all in the same day–is just plain silly for its utter implausibility. This is one of those days I’ll never forget.

Read what led him to that conclusion here.

Send Me Your Doorstuffs

Posted in F1@1F Friends, SCOTUS Doors by Mike Sacks on May 4, 2010

Now that F1@1F has made it into the NYT and the BLT regarding the SCOTUS door closure, I’m taking it upon myself to collect stories, photos, and videos of readers’ experiences approaching and entering the Court’s bronze doors.  Please send me what you have.  If I get enough by this time next week, I will post them all here on the site.

Also, Steve de Man, a friend I met in line at Doe v. Reed and CLS, has started a Facebook group, “Supreme Court: please reopen your steps.”  I encourage those who have walked through the doors, hope one day to walk through the doors, or simply value the experience’s availability to American citizens, to join up.  The Court isn’t likely to change its position, especially because it spent so much time and treasure creating the new entrances to the visitor center, but it’s worth registering your dissents.

Here’s Steve and his friend Patrick O’Donnell talking shop at dawn in the Doe line:

Finally, Lawrence Hurley at Washington Briefs has posted a glimpse at the steps’ new, dismal scene.  Too bad we likely will have to wait for an even more dismal scene (skip to 20:00, watch through 24:00) before anyone else–spare perhaps the next justice–may walk through those doors again.

Friends of F1@1F: Interview w/ Toobin & McDonald Esoterica

Posted in F1@1F Friends, Law and Politics by Mike Sacks on April 13, 2010

I should have anticipated that only the second installment of “Friends of F1@1F” would be a bit of a deviation from its mission to highlight the blogs of those I’ve met in line.  This week, I bring you an interview with Jeffrey Toobin by Anthony Vitarelli, a pre-F1@1F friend of mine who gave me my blogging start at a now-defunct political blog that he founded and edited.

Here’s an excerpt from the interview:

Vitarelli: [...] I’m curious what your thoughts are on what has made Justice Stevens effective at garnering majorities in cases like Hamdan and Boumediene? If this President were seeking to replicate that aspect of Justice Stevens’s temperament, what would he look for in a nominee’s career to date?

Toobin: One of the myths of Supreme Court confirmations, or Supreme Court appointments, is that there are very good predictive tests of how people will turn out as justices. I mean, look at Justice Stevens. Justice Stevens started out on the bench as kind of a lone eccentric and turned into a tremendous consensus builder. Through the course of all his decades, there were a couple of different kinds of justices that he was.

Obviously, it would be best not to nominate a reclusive scholar, but it is hard to predict what kind of personality would move the very small electorate that is the Supreme Court, especially when you’re largely talking about only one persuadable target. That’s really guesswork. Any nominee that is nominated in 2010 is likely to serve with many justices whose identities we don’t even know yet. All this talk about the kind of personality you want is really guesswork at best.

Vitarelli: In terms of the current careers that potential nominees have, the last nine have been sitting judges on circuit courts. How has that fact helped or hurt the Court as an institution? What advice would you give to the President on this point?

Toobin: I think Obama is right that it is time to end the circuit judge monopoly on the Supreme Court. Historically, the justices have not all come from the appellate court bench. Personally, I don’t think the Supreme Court should be the top step on the civil service ladder for judges – it’s a different job than other kinds of judges. And it’s no coincidence that the court that decided Brown vs. Board of Education didn’t have one person on it that had ever been a judge on any court before that. I think judges with legislative, executive, and business experience would be very good.

Vitarelli: Do you think that the fact that 2010 is an election year will affect which person the President nominates for the Court?

Toobin: I don’t think so. We operate in a 24-hour, 365-day political and news cycle. So I don’t think 2010 is much more politically incendiary than 2009 was. Democrats and Republicans fight all the time, that’s just the world we live in. And I don’t think it matters much.

I don’t know if Obama has actually committed himself to ending the circuit judge monopoly on the Supreme Court with his next nominee.  I support the revival of politicians and practitioners on the Court, but am wary of starting that trend with Stevens’s successor.  Stevens’s role on the Court as the senior associate justice and the liberal bloc’s leader has become too valuable for Obama to choose a nominee that possesses insufficient institutional knowledge, pre-existing gravitas, and political skills to step right into Stevens’s shoes.  There are surely non-circuit judges that could ably fill the Stevens seat, but none of them are on Obama’s shortlist.  The President would do well to wait for Justice Ginsburg’s retirement to start experimenting with unknown quantities.

Today’s second Friend of F1@1F is Sabrina Ghaus.  Sabrina was one of the thirty-some high school students from Cupertino, CA, who camped out overnight for the McDonald argument on March 2.  Below is an excerpt from her reflections on that cold, happy night:

The last time we walked by the marble steps of the Supreme Court, it was 4:30 pm and the late afternoon sun shone lazily in the sky. “Lazily,” because it couldn’t be bothered to provide us with any warmth. The weather itself was briskly chilly.

We sat in a group, 32 members strong on the cold marble, huddling for warmth.

“Do you guys want to camp out?” Mr. Chiang asked.

My eyes widened. YES, I said under my breath. PLEASE.

There was chatter and noise as people argued and complained about the cold.

“Can we go back to the hotel? It’s not worth it!” “But what if we WANT to sleep outside?” “Can we come early in the morning?”

And after about 20 minutes of useless argumentation, it was settled. Those of us who wanted to would camp out. The rest would stay at the hotel.

I couldn’t believe it was really happening.

If you, too, have a story from the Supreme Court sidewalk, please do write to me.

Friends of F1@1F

Posted in F1@1F Friends by Mike Sacks on April 2, 2010

One of the most gratifying parts of this project has been meeting all sorts of people in the early morning line.  And as it turns out, I’m not the only person who goes home and writes about the experience.

I offer anyone who has stood in line with me–or in line without me–who has written about his or her experience at the Court to send me a link, and I will post it here.

The first blogger in my Friends of F1@1F feature is Brandon Forbes.  Forbes was twenty-sixth in line for Tuesday morning’s arguments and blogs at Good Gov, Y’all.  He recapped his experience outside and inside the Court with an entry titled, “Sitting Courtside, Breyer & Scalia Give Me Hi-Fives,” in which, among other things, he posited his own thoughts on a conversation we had while shivering on First Street:

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.

I do, in fact, believe that Justice Stevens does fit the Stewart mold, but Brandon makes a good point that this has been obscured by the Court’s post-Roe politicization, in which the Court, as Jeffrey Toobin recently noted, “has become a partisan battlefield.”

Indeed, Stevens has consciously strived for the survival of Stewart’s legacy despite the rise of rigid ideology on the Court.  As Jeffrey Rosen wrote in 2007,

Stevens, however, is an improbable liberal icon. “I don’t think of myself as a liberal at all,” he told me during a recent interview in his chambers, laughing and shaking his head. “I think as part of my general politics, I’m pretty darn conservative.” Stevens said that his views haven’t changed since 1975, when as a moderate Republican he was appointed by President Gerald Ford to the Supreme Court. Stevens’s judicial hero is Potter Stewart, the Republican centrist, whom Stevens has said he admires more than all of the other justices with whom he has served. He considers himself a “judicial conservative,” he said, and only appears liberal today because he has been surrounded by increasingly conservative colleagues. “Including myself,” he said, “every judge who’s been appointed to the court since Lewis Powell” — nominated by Richard Nixon in 1971 — “has been more conservative than his or her predecessor. Except maybe Justice Ginsburg. That’s bound to have an effect on the court.”

In his one of his final written opinions, Justice Souter, another judge in the Stewart–if not Harlan II–mold of judicial conservatism, planted a seed of wisdom for future justices who follow in his and Stevens’s footsteps once today’s age of politically-aligned ideology subsides:

Changes in societal understanding of the fundamental reasonableness of government actions work out in much the same way that individuals reconsider issues of fundamental belief. We can change our own inherited views just so fast, and a person is not labeled a stick-in-the-mud for refusing to endorse a new moral claim without having some time to work through it intellectually and emotionally. Just as attachment to the familiar and the limits of experience affect the capacity of an individual to see the potential legitimacy of a moral position, the broader society needs the chance to take part in the dialectic of public and political back and forth about a new liberty claim before it makes sense to declare unsympathetic state or national laws arbitrary to the point of being unconstitutional. The time required is a matter for judgment depending on the issue involved, but the need for some time to pass before a court entertains a substantive due process claim on the subject is not merely the requirement of judicial restraint as a general approach, but a doctrinal demand to be satisfied before an allegedly lagging legal regime can be held to lie beyond the discretion of reasonable political judgment.

The whole dissent is worth reading.  I am convinced that a generation from now, Souter’s parting words will steer a Court that reflects a society confident enough to allow a judge to judge, rather than force a justice to fit facts into predetermined ideological frameworks.  Just as Harlan and Stewart, both Eisenhower nominees, entered the Warren Court comparatively conservative to their stridently liberal brethren but now appear to be sober moderates, so too will Stevens and Souter be remembered as moderate despite their reputation as liberals from serving in a politically distorted age on the Court.

In other words, the principled judging qua judging of Harlan, Stewart, Stevens, and Souter has been an enduring casualty of the Warren and early Burger Courts’ politically liberal overreach and the subsequent politically conservative overcorrection of the Rehnquist and early Roberts Courts.

But I don’t think it is too offensive for this Jew to say on this Easter day that the moderates’ jurisprudence will be resurrected by a confident public that trusts judges’ judgment and votes for Presidents and Senators that reflect America’s transcending the current culture wars.

If this vision of the late Roberts Court looks more like the apocalypse scenes in the Book of Revelations than the Gospel, then you should check out Josh Blackman’s blog.  Blackman and I got to know each other as we liveblogged the McDonald line.  In addition to his libertarian-originalist blogging and his FantasySCOTUS league, Blackman has beatified, through non-profit incorporation, the first Justice Harlan as the Court’s proto-originalist.  Through his Harlan Institute, Blackman seeks to deepen schoolchildrens’ understanding of the Constitution–an honorable goal, even if in pursuing it, he hopes to perpetuate a particular ideology into the next generation that gets in the way of my own vision for how we view the Court and politics.

But I come not to quibble the future with Josh, but rather to praise his prankster skills.  Yesterday, he posted a story titled, “FantasySCOTUS.net to receive 30 min advance notice before opinions issued to curb cheating“:

When I mentioned this unfortunate fact [of FantasySCOTUS cheating] to friends at the Supreme Court, they clued me into a little known SCOTUS secret.  Certain reporters, news agencies, and blogs, receive 30 minute advance notice before opinions are issued. While the Court does not release the holding of the opinion, the Clerk of the Court sends a brief e-mail, listing the opinions that will be issued.

At first I was incredulous, and didn’t believe this was possible. But at some point during the Rehnquist Court, Nina Totenberg, the doyenne of One First Street, used her enormous clout to push for this privilege. She was tired of hiking to the Court on days when lousy opinions were issued. Once she asked for it, the Court could not say no. Apparently, Lyle Denniston at SCOTUSBlog has been receiving these tips for years. No wonder he is always able to get post such thorough summaries so quickly.

Like any cert grant, in order to qualify for this special privilege, the Rule of 4 applies.  Justice Sotomayor came through, and joined the Chief Justice, Justice Alito, and Justice Thomas. Apparently the Junior Justice is a serious Fantasy Sports fan, and fell in love with the league, and was appalled that people would cheat. Sadly, Justice Scalia decided to recuse, due to some of my recent publications criticizing his views in McDonald.

Justice Breyer, joined by Justice Stevens and Justice  Ginsburg, dissented from the issuance of our petition. He does not seem to be a fan of FantasySCOTUS.net. In a verbose opinion, he wrote that while liberty must be active, fantasy court leagues must be passive, and we were not worthy of this privilege. Paraphrasing Chief Justice Roberts famous admonition from Parents Involved, Justice Breyer wrote “the way to end lame fantasy sports leagues is to end lame fantasy sports leagues.”

That’s a hell of a clever April Fools’ joke.  Seems credible at first, but steadily slides into farce and, ultimately, self-deprecation.  Very good stuff.

If you have written about your SCOTUS experience, please do send me the link.  If I get a few more stories, I will also add an F1@1F Friends link to my blogroll.

UPDATE: Josh Blackman writes in,

“Nice dig at Harlan [Institute] ;).  It really isn’t ideological.  [Harlan Institute's] not about institutionalizing originalism. Its about teaching about the history of the constitution to influence decisionmaking. There is a difference.  If I do my job right w harlan, kids will learn enough about history to make themselves informed and need not reach the results I wish.”

I quibble no longer: that’s an absolutely honorable goal.

UPDATE II: Brandon Forbes, Duke Divinity School ’03, writes,

Easter is actually on Sunday. Jesus is still technically “dead” right now. The Christians will be unhappy if you resurrect him too soon.

Point taken.  I’ll be sticking to my matzoh from now on.  At least Brandon and I will be on the same page for who to root for in the Final Four tomorrow.

UPDATE III: One day after this post, the NYT has published an interview with Justice Stevens by Adam Liptak.  Along with getting even closer to Justice Stevens’s internal deliberations upon his perhaps-imminent retirement, the interview also gets to Justice Stevens’s self-conception as a judicial conservative by touching upon his majority opinion in Kelo and the final paragraph of his Baze v. Rees concurrence:

His views have generally remained stable, he said, while the court has drifted to the right over time. “To the extent I look back at earlier situations,” he said, “I really don’t think I’ve changed all that much.”

Often, he added, the law requires a certain result, as in the court’s 2005 decision in Kelo v. City of New London, which allowed local governments to use the power of eminent domain to take private property for business development.

“The Kelo case was one of my most unpopular opinions, and that was one where I thought the law really was pretty well settled on the particular point,” he said.

Asked if he would have answered the question presented in the case differently had he instead been a legislator, Justice Stevens said probably yes.

[...]

In the area of capital punishment, though, he said his views had shifted.

“I certainly would not have expected during my first years on the court to have written an opinion like I did in Baze,” he said, referring to Baze v. Rees, the 2008 decision that rejected a challenge to lethal injections. Though Justice Stevens voted with the majority, he wrote that he had come to the conclusion that the death penalty violates the Eighth Amendment. He went on to say that his conclusion did not justify “a refusal to respect precedents that remain a part of our law.”

He explained Friday why he did not follow the approach of Justices William J. Brennan Jr. and Thurgood Marshall, who adopted a practice of dissenting in every death penalty case.

“I’m still a member of the court, and I still have to work,” Justice Stevens said. “I never really agreed with Justice Brennan and Justice Marshall that your own personal view on the issue should prevent you from participating. You’re still a member of the team, and the team has to confront the problem.”

But that did not mean Justice Stevens, who in 1976 voted to reinstate the death penalty, was satisfied with the court’s capital jurisprudence.

“There are a number of death cases that troubled me,” he said. The Baze opinion, he added, “was really my reaction to the developing jurisprudence, which I think moved in a direction that I didn’t expect and is not correct.”

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