I opened my front door this dark morning to a chilly gust of autumn air spitting rain in my face. “Don’t make a habit of this, Justice Kagan,” I thought to myself.
Mother Nature has not seemed to take kindly to Elena Kagan’s milestones. On the day of her confirmation vote, a ferocious thunderstorm crashed through Capitol Hill in the time the Senate took to open and close its voting. Now, on the heels of Washington’s first glorious fall weekend, rainclouds insist on overseeing the entirety of Kagan’s debut week on the bench.
But Mother Nature is not the newest justice’s final arbiter. As the dreary day broke on One First Street this morning, scores of umbrellas shielded men and women waiting for their opportunity to give Justice Kagan a more hospitable welcome than the elements afforded.
Of all those who showed up to witness the new justice’s historic first day of court, however, one man stood out.
“You’ve got to meet Graham,” said Ryan Malphurs, who arrived shortly before 4am. A newly-minted Ph.D. in Communications, Malphurs has attended around 60 oral arguments since 2006, traveling from Texas each time, to conduct research for his dissertation on the justices’ power of persuasion at oral argument. Back again to continue his work as he expands his dissertation into a book, Malphurs introduces his friend.
Graham Blackman-Harris, 44, is the ultimate Court-watcher. Hailing from Jersey City, NJ, he made his first trip to the Court in 1990.
“I wanted to see Thurgood Marshall on the bench before he retired,” says Blackman-Harris of his first in-person encounter with the Court. “He looked like a giant.”
Since then, he’s made all but two First Mondays in October.
Forget doctoral students, forget stunt-bloggers, forget lawyers: Blackman-Harris truly embodies the civic passion so evident among the Court’s most ardent followers. A FedEx Operations Manager and self-professed C-SPAN junkie, he cites 1998’s Clinton v. City of New York as his favorite case because he had followed its issue—the constitutionality of the line-item veto—since the bill’s birth in the Senate.
“I’ve read the Constitution a bajillion times,” he says with a laugh. “I love it. Even the three-fifths part”—referring to the infamous clause writing slavery into the founding document—“because the 13th, 14th, and 15th Amendments corrected it.”
After his first trip to the Court, Blackman-Harris began his First Monday tradition in 1991 with the intention of seeing Justice Clarence Thomas’s debut. The Anita Hill allegations, however, served to delay the Senate’s confirmation of Thomas until mid-October. He has been luckier in later years, witnessing Justices Ginsburg, Breyer, Sotomayor, Kagan, and Chief Justice Roberts all make their first appearances.
Still, Justice Thomas occupies a large swath of Blackman-Harris’s highlight reel.
A year after Thomas joined the Court, the justice continued to face antagonism in the press. Blackman-Harris, who, like Thomas, grew up quite close to his grandfather, wrote the justice a letter telling him to “keep his chin up.”
Thomas wrote back with a personal thank you note. Since then, Blackman-Harris has written every other justice but never received anything more than a form letter in return.
“I don’t believe in a lot of the things Justice Thomas believes in,” says Blackman-Harris, “but I didn’t think it was fair” for the justice to get attacked for his conservative jurisprudence. “The Constitution, that sweet document, entitles [Thomas] to his beliefs.”
And Blackman-Harris can count himself among the few lucky members of the public to have seen with his own eyes one of the few moments that Justice Thomas has expressed his beliefs in the form of a question during oral argument.
“The whole courtroom just went quiet,” he remembers. That’s saying something for a place where library-silence is always maintained.
Indeed, he wishes that all Americans could witness moments like that. To back up his belief, he has written additional rounds of letters to the justices urging them to televise their proceedings.
But it should be apparent by now that for Blackman-Harris, C-SPAN’s “America and the Courts” is simply not enough. This year, he showed up on a crutch, hobbled by hip problems. “I was going to crawl if I had to,” he says.
His commitment to his visits for First Mondays and landmark arguments runs deeper than mere interest. For this man from Jersey, it’s personal. “This is my Court!” he exclaims as we enter the building.
Graham Blackman-Harris, in his deep devotion to the American idea, proves how inconsequential everyday setbacks like injury or inclement weather really are to the success of the American spirit. From the Founders scrapping the Articles of Confederation for the Constitution during a stiflingly hot Philadelphia summer to our first African-American President’s inauguration on a frostbitten Washington winter morning, we and our leaders push forward against the elements into each new chapter in our country’s history.
And judging by Justice Kagan’s performance today—poised, comfortable, and perfectly fluid in a bankruptcy case, no less—she and her audience need not regard a trifling turn in the weather as a bad omen for her decades of service to come.
My Vox Populi column from the Doe v. Reed line is now up at the ABA Journal:
Those of us dozing in the Doe v. Reed line at half past five on Tuesday morning received a rude awakening from a homeless man ranting at us about the interrelation of President Nixon, G. Gordon Liddy, axe murderers, and Internet privacy.
“Just don’t call him Jay Jay–he hates that!” concluded the man, referring to Liddy, as I fumbled for my glasses. By the time I could see anything, however, he was gone.
The trouble with pulling overnights on First Street is that the natural sleep hours invariably fall between three and six in the morning–the primetime arrival hours for most other would-be SCOTUS spectators on blockbuster case days. So while bits of the man’s rant seeped into my half-conscious dreamscape, many others stood fresh-faced and wide-awake with this scene as their introduction to life on the Supreme Court Side Walk.
But those of us who had been sitting outside since sundown saw another side of the story.
Read the rest here.
My Vox Populi column from the Sunday night/Monday morning line is now up at ABA Journal:
Sometimes gross miscalculations can yield fortuitous results.
Jordan Salberg arrived at One First Street on Sunday afternoon to find a group of ten undergraduates from Eastern University in Pennsylvania fronting the general admission line for Monday’s oral arguments in Christian Legal Society v. Martinez.
Perfect, he thought: Salberg, a first-year at American University’s Washington College of Law, came to see City of Ontario v. Quon, Monday morning’s second argument. The undergrads would exit the Court after CLS and leave him the best (unreserved) seat in the house.
Salberg felt so warmed by his fortunes that he lent his air mattress and quilt to unlucky #13, who showed up from Seattle to sleep on the sidewalk without any protection from the cold concrete and unseasonably wintry winds.
But that was before Salberg decided to move his car at 6:45am. When he returned shortly after 7am, the Court police had moved the line up from the sidewalk to the plaza and handed out numbered placeholders. Salberg’s guaranteed #11 disappeared; as far as the line was now concerned, his fifteen-hour wait never happened.
Read the rest here. I’ll post some Supreme Court Side Walk footage later this week.
My report from line is now live at the ABA Journal:
The line doesn’t lie.
By 4 p.m. on Heller Eve two years ago, forty people stood in line along One First Street. At the same time this past Monday, the day before oral arguments in Heller’s sequel, McDonald v. City of Chicago, there were only seven of us.
As the sun set over the Supreme Court, we wondered why the line wasn’t longer; after all, this was the case that would resurrect the Privileges or Immunities Clause of the Fourteenth Amendment and introduce a new constitutional order for all fundamental rights! Nevermind where all the gun nuts were—where were all the abortion warriors, railroad robber barons, education rights revolutionaries, and health care socialists?
But the line doesn’t lie. We were just too wrapped up in McDonald’s hype to listen. This was going to be a simple incorporation case. [...]
But none of this is to say that McDonald’s twenty-four hour line was not extraordinary in its own right.
Read the rest here.
And if you haven’t yet read the NYT’s story from the McDonald line, you may do so here.
Adam Liptak of the NYT has scooped my McDonald vox populi column and I can’t thank him more for doing so.
WASHINGTON — Mike Sacks likes to be the first person in line for big Supreme Court arguments, and he was feeling pretty confident when he arrived at the court Monday morning around 8, 26 hours before the court would hear a big gun-control case.
To all the readers directed to F1@1F from Mr. Liptak’s story, please enjoy your stay and be sure to subscribe!
These past three days have been among the most rewarding I’ve ever had. F1@1F is still in its infancy and its mission still far from accomplished, but my first week at the Court has been a rousing success. I would like to thank everyone who spoke with me on and off the record in the freezing cold as well as Above the Law for blurbing over thousands of visitors to the web site on Monday.
Today’s crowd for American Needle v. NFL featured a sports law guru; two beaming UVA 2Ls; a headlamped, brief-reading, lawn-chair sitting college senior; and a DC lawyer who works for the firm representing the NFL and clerked for the Seventh Circuit judge whose opinion was at issue this morning. And they were only numbers two through six in line.
But for all the lawyers and law students in the general admission line before dawn this morning, two lay persons will stand head and shoulders above all in my memory. Literally.
Jim and Meade Klingensmith, a father and son from Pittsburgh, PA, and both, by my estimate, standing about 6’6″, waited in line each day this week. And next week, when I will be sleeping in and going to class, they will be back out there in line, making wimps out of the rest of us.
Meade, a sophomore at Oberlin College, is in DC on his winter term, where he is pursuing an independent study. His project?
“I’m going to all five hearings,” said Meade, “and for each one, I will be writing down how I would come down in the case and how I think it will actually come down.” Awesome.
Jim, Meade’s father, just retired and was visibly thrilled to have the time to share this unique experience with his son. His wonder at the Court remained equally palpable since we met on Monday.
“It’s very impressive to see the judicial system at work,” Jim said through a smile. ”It really affirms your belief in the law. Everything you’re seeing, you’d expect to see, but it’s good to actually see it.”
And for a college student who could still be on break had he so desired, Meade had a surprisingly positive attitude about his grueling mornings. Whereas waking up at 2:30am was the hardest part for me, Meade claimed that nights are harder because he knows he’ll be sleeping for fewer hours than he’ll be standing in the cold. But, said Meade, “once the morning comes, I just go for it.”
Nearly every person I spoke to had his or her own fear about these mornings: not enough sleep, too cold, going alone, hard to wake up, may get there too late to get in. But once these mornings came, we all went for it. And once we get in line and meet our neighbors, our fears melt away, even if our toes turn to ice.
“It’s been fascinating to hear each person’s story,” reflected Jim.
I couldn’t agree more. Thanks to everyone in line who shared theirs with me.
I hope to see you all again next month for the next batch of newsworthy cases. And if any of you readers want to come on out, well, you know where to find me.
Until then, I will continue to blog regularly, sans Court reports, here at F1@1F. Subscribe by RSS or email, bookmark the page, or check in whenever. I enjoy your comments and feedback, so please keep the hits coming.
“I think it says something positive about American democracy that people are out here to see the Court and how it works,” said Ryan Lirette. Mr. Lirette is a recent graduate of Boston University School of Law. He is taking his law firm’s deferral year to work as a research associate at the American Enterprise Institute here in DC. Sixth in line, Lirette arrived before 6am to see Comstock.
Last week Mr. Lirette wrote an op/ed, crossposted at the National Review Online’s “Bench Memos” blog and AEI’s own blog, urging the Court to strike down the federal statute authorizing indefinite civil commitment of convicted sex offenders after their prison sentences have run. ”The Court”, he wrote, “should take this opportunity to rebuke Congress’s gluttony by preventing it from meddling in areas that lawfully belong to the states.” Yet when I asked Mr. Lirette for his thoughts this morning, he left his partisan bona fides on the web in favor of a civic pride that all of us standing in the dark could agree upon.
Brandon Bartels, a political science professor at George Washington University, has made his career out of studying how the Court works. A judicial politics scholar, Professor Bartels just moved to DC in June and this was his “maiden voyage” to a Supreme Court oral argument. He came out for Comstock primarily because he wanted to “see a case where the United States was a party,” and believed that the Court would uphold the civil commitment law, in contrast to Mr. Lirette’s argument to the contrary.
Although Prof. Bartels, a young political scientist, calls the Court a “political institution,” he does not mean it in the rawest, most cynical sense promoted by other scholars of judicial politics. Instead, he frames the Court as an institution, rather than nine policy-driven judges, that is “forced to make decisions on political issues” by virtue of the political nature of some legal controversies. For example, “when a court strikes down a law as unconstitutional, [the decision] has clear policy implications,” whether or not judges sought to implement their own policy preferences.
Still, he maintained that on the day-to-day basis, the Court simply doesn’t “give a crap” about politics–at least since Justice O’Connor retired. For Prof. Bartels, this distance preserves the Court’s independence and grants it the institutional legitimacy to be the “final arbiter of what the law means,” even as the Court does follow “long waves,” or general trends, in public opinion over time.
Further down the line stood four forensic psychologists who belong to the American Psychology-Law Society. As opposed to Mr. Lirette and Prof. Bartels, who had more academic and theoretical interests in Comstock, these women came up from Richmond because the outcome of the case would impact their field. Civil commitments, they said, have become “huge” in their area and Comstock‘s ”trickle-down effects,” however the case will be decided, will “make a difference” in their work.
Blair and Erin Miles, two years married and soon to move to Southern California, stood in front of the forensic psychologists. The Miles’s have assembled a DC “bucket list” before they abandon their winter parkas for summer sandals out West. Mr. Miles had been “DC born and raised,” but had “never been to a case” despite having lived in DC his whole life. Ms. Miles, who met her husband while they were in law school at University of the District of Columbia, had “tried once before [to get into an oral argument], but didn’t make it in.” This time, however, they arrived early enough to catch one more bitterly cold morning and their first oral argument. To make matters sweeter, Ms. Miles works at the National Center for Missing and Exploited Children, where she “does a lot of work with the Adam Walsh Act,” which contains the civil commitment law at issue in Comstock.
Of course, no morning line would be complete without the law students. Several, including Timothy Ziese, a Georgetown 2L who arrived with his out-of-town twin brother Jonathan to claim the third and fourth spots in line, had a zeal for constitutional law in general. Others, such as Allison Segal of Widener Law School in Delaware, came to see the oral argument after spending months on a law review article that contributed to her near-expert understanding of the issues at play in Comstock. Indeed, Ms. Segal went so far as to lay out her justice-by-justice predictions to conclude that Chief Justice Roberts would be the swing vote to affirm the 4th Circuit’s ruling the civil commitment statute unconstitutional.
In Comstock, a Congressional statute lay at the mercy of the Court. But those of us who witnessed night turn to day on First Street this morning saw the same sun rise over the Court and the Capitol. And so did it rise over us, whether right or wrong in our predictions, or right or left in our politics, as we stood united, waiting to watch American democracy in action.
One era’s political flashpoint is another’s muted issue. This was particularly clear this morning at the Supreme Court, which was hearing two cases that a generation or two ago would have drawn protesters and fueled political campaigns. Instead, nearly all of the committed souls who showed up this cold, mid-January morning by and large lined up “just because.” And that’s not a bad thing at all.
Alabama v. North Carolina, the first case argued this morning, featured a dispute between four southern states and North Carolina over the latter’s withdrawing from a radioactive waste disposal compact made in the mid-1990s. In the 1970s and early 1980s–the years leading up to Chernobyl and Three Mile Island–organizations such as the National Resource Defense Council challenged the construction of nuclear power plants and and represented the public fear over the plants’ plans for their radioactive waste disposal. Today, in the age of global warming and dependence on foreign oil, nuclear energy is far less politically controversial–at least domestically.
As such, only one person in line–James, an undergraduate at Grinnell College with ambitions to be an environmental lawyer–stated specific interest in watching Alabama v. North Carolina. The several others who cited Alabama v. North Carolina as the case they came to see admitted that they knew nothing of the case. Indeed, they confessed that they only mentioned the case because it was the only name they remembered of the two cases to be heard.
Meanwhile, no lawyers in line even mentioned Alabama v. North Carolina. This is likely because the Court is obligated under Article III, section 2 of the Constitution to hear disputes between the states, however dull they may be. Yet it is telling of our times that a case about nuclear waste disposal does not clear the “mind-numbingly dull” bar, but Michigan’s filing suit at the Supreme Court to force Illinois to keep Asian carp out of the Great Lakes managed to make headlines. Further, not even the prospect of watching Carter Phillips and Walter Dellinger–titans of the Supreme Court bar–square off as opposing advocates could foster interest in Alabama v. North Carolina.
Briscoe, on the other hand, attracted a handful of lawyers and law students, but no others in line expressed specific interest in the case. James Rivera of Virginia, a non-practicing lawyer, said that he was “happy how [the Supreme Court] ruled in Melendez-Diaz” and was “surprised how they granted cert. a week after Melendez-Diaz.”
Jon Grimm, a second-year law student at Georgetown, was writing a paper on the Crawford line of cases. He believed that “Sotomayor will be the swing vote,” but was unsure which way she’d swing. The case’s “civil rights aspects,” Grimm said, point to Justice Sotomayor’s voting with the Melendez-Diaz majority, but he also found that her experiences as a prosecutor support her ruling voting to overrule Melendez-Diaz.
Grimm was not alone among the interested law students: second- and third-years from Georgetown, Syracuse, Penn, and Columbia all lined up to gather more fodder for their future law review articles on the Confrontation Clause as defined by Crawford, Melendez-Diaz, and Briscoe.
Missing, though, was the politically-charged outrage that criminal law cases often trigger. For the last fifty years, the Court’s criminal law decisions have stirred this country’s passions. In the 1968 Presidential campaign, Richard Nixon ran against the Warren Court’s expansion of criminal defendants’ rights in cases such as Gideon v. Wainwright and Miranda v. Arizona. Nixon’s law-and-order vision of the Court won. His appointments of Chief Justice Burger and then-Justice Rehnquist triggered the Court’s three-decade shift to the right.
Like protests against nuclear energy, appeals to law and order may have simply lost their former political salience. Perhaps our torrid interests in abortion, national security, death penalty, and Second Amendment cases have made quaint old maids out of the jurisprudential pin-up queens who reigned several generations ago. Or maybe Justices Scalia and Thomas’s conservative bona fides are so strong that no conservative interest group bothers to foment public discontent over the two justices’ incidentally liberal Confrontation Clause decisions.
Whatever the reasons, the thrill was clearly gone this morning. But that could be the sign not of a desensitized, less engaged polity, but rather, a mature and evolving citizenry. No one looks to, say, Prohibitionism or Shays’ Rebellion and laments the obsolescence of their motivating politics. We should never take our eyes off of denials of equality or infringements upon our liberty. But we should also appreciate that a more tempered attitude towards previously polarizing issues may lead to better politics and, therefore, better laws.