First Post @ First One @ One First

Posted in Introduction by Mike Sacks on December 30, 2009

My name is Mike Sacks.  I am a third-year law student at Georgetown interested in legal journalism and the intersection of law and politics.  This semester, I have no morning classes.  As such, I will be taking advantage of living only minutes from the Supreme Court to pursue a rather unorthodox extracurricular activity: reporting from the Court as the first one in line at One First Street.

For every politically salient case from January through April, I will attempt to be at the head of the general admission line.  This is no mean feat: for the September rehearing of Citizens United v. FEC–also Justice Sotomayor’s first appearance on the Bench–much of the line started forming around 4am.  How do I know this?  Because I claimed my first ever “First One @ One First” ticket by spreading my blanket on the sidewalk at 11pm the previous night.

As a Duke University graduate, I should have ample camping-out experience.  But in my four years as an undergraduate, I actively sought to–and succeeded in–securing my admission into the Duke-UNC games without once suffering through wintry nights in a flimsy tent perched on the soggy soil of Krzyzewskiville.  Indeed, as a former “Nina Totintern,” I once enjoyed a similar evasion of the elements at the Supreme Court.  But those halcyon days of press-passed entrances are over.  Now I must rough it.

Camping out at the Court in winter’s nadir will not be easy.  Tents are forbidden.  The concrete sidewalk makes for an unforgiving bed.  Sprinklers spring up in the still of the night.  Challenging climate be damned, however; when the next person arrives, excited to be first, he or she will find me, with my cracked lips and frozen fingers, sardonically asking how it feels to be second and seriously inquiring why he or she is crazy enough to get in line so early.

And that question–“why are you here?”–is what I set out to explore.  Every Supreme Court reporter tells us what goes on inside the Court at argument and in its opinions.  Every Supreme Court reporter gets insight and analysis from expert academics and practitioners.  Sometimes Supreme Court reporters even interview a party in the case to expose the human element often lost in the rarefied air of high court’s legal abstraction.  But no Supreme Court reporters ever ask the Courtroom’s spectators why they have congregated inside the Temple of our Civil Religion.

Our citizenry who have come to witness the Court first-hand surely have something to say, whether when waiting in line before the Court opens or spilling out onto the steps after the Chief Justice’s gavel bangs closed the day’s session.  Perhaps no one ever asks them because our judiciary is supposed to function independent of public passions.  But only the most dogmatic adherents to the mythology of an insulated Court will maintain that our Third Branch is apolitical.  Look to the anti-abortion protesters who spend every day standing silent in front of the Court or the grandstanding Senators asking stonewalling judicial nominees for their views on the day’s hot-button political issues.  Look at the Court’s history in matters of racesexPresidential power,economic policylaw enforcementsexual orientation, to name only a handful, to find the Court inexorably intertwined with the era’s political climate.  Look even at the Court itself: justices are labeled for their fidelity to liberalism or conservatismhowever epochally defined.

The Court is responsive to politics.  Consequentially, the vox populi should matter for those interested in the Court.  What does the person in line at 5am hope to see in this case?  Why is the family that shows up at 9am hoping to get in?  How many of those waiting for the doors to open are lawyers invested in the litigation or legal issues at play or professionals or citizens who will be impacted by how the Court may rule?  How many people exiting the Court even understood what they just saw and heard?  Do they care or were they just there to be there?  All of these people represent the American public.  How they vote is impacted by how they perceive our country’s system of governance.  Their experience with the Court–whether from the position of knowledge or ignorance, veneration or cynicism, all of the above, or somewhere in between–helps shape our political dialogue that informs who we elect to represent us in the Executive and Legislative Branches.  These branches, in turn, shape the judiciary through nominations and confirmations; and the judiciary, thus shaped, passes judgment on the political choices made by earlier–and sometimes contemporary–Presidents and Congresses.

Accordingly, my other aim for this project is to test my hypothesis that the Roberts Court has been quite responsive to its surrounding, and shifting, political climate.  I have a forthcoming piece detailing my thoughts, but I will preview my evidence:

  • During the 2006-07 term, the first full term in which both Chief Justice Roberts and Justice Alito served together, Republicans controlled the White House and both chambers of Congress.  Meanwhile, the Roberts Court aggressively pushed rightward on abortionstudent speechschool desegregation, gender discrimination, and campaign finance.
  • The Court’s 2007-08 term proceeded alongside a divided government with a Republican President and Democratic majorities in the House and Senate.  The Court reflected the division: President Bush, seeking a legacy, saw a conservative interpretation of the Second Amendment win out in Heller; the Democratic Congress, elected in a wave of anti-war sentiment, found its hostility to Bush’s war on terror policies reflected in the Court’s granting habeas corpus rights to Guantanamo detainees in Boumediene.
  • Last term, which straddled the Bush and Obama presidencies, found the Court taking a blockbuster case in in September 2008 that threatened to invalidate a key civil rights provision of the Voting Rights Act of 1965, but pulled back with an 8-1 decision in June 2009 upholding the provision.
  • This term, the first one fully operating alongside a Democratic Presidency and Congress, is progressing in an almost post-partisan fashion, as if the conservative Court has taken to heart President Obama’s overtures to the Right unwelcome among Congressional Republicans.  The Court is reckoning with one case that pits liberal values against liberal values, another in which two conservative values clash; further, McDonald v. City of Chicago may result in a grand bargain in which the conservative Heller majority can extend its interpretation of the Second Amendment to the states by breathing new life into a clause of the Fourteenth Amendment that could strengthen constitutional protection for liberal causes.  In fact, the only case that threatens a drastic shift to the right in a politically salient issue is Citizens United, the campaing finance case I camped out for in September.  And not only is that case officially part of last term, but also the fact that no opinion has come down yet has led some to speculate that it may not be the cut-and-dry 5-4 conservative opinion most expect.  But more on that case, and how it fits into my hypothesis, when the decision actually comes down.

Finally, I will use this site to post other thoughts on the Court that I haven’t yet read anywhere else.  Given that the legal and political blogs tend to express every possible sentiment existing in this world and parallel universes, these entries will likely be rare and in the shape of wild conjecture.  When another site says something I’m thinking, almost always much better than I can express it myself, I will post it here.  Further, when another site says something exceedingly compelling that I have not yet thought or I could have never come up with by myself, I will post it here.  And if another site says something exceedingly objectionable and I have something to contribute to it, I will post it here.

Thank you for reading.  If this introduction has gained your interest–and if you’re this far, I hope it has–please subscribe and share!


24 Responses

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  1. Erin said, on January 1, 2010 at 12:26 am

    Hey Mike! This sounds like an amazing project. Best of luck to you. I’ll link to your blog from mine and will be excited to get updates. Best, Erin

  2. Anthony Davis said, on January 11, 2010 at 5:05 pm

    I look forward to reading about your journey outside the Bighouse.

  3. liz said, on January 11, 2010 at 5:06 pm

    please send

  4. Mark said, on January 11, 2010 at 5:19 pm

    Excited to see how this turns out, Mike.

    Also, I’m still shocked you never camped out at K-ville.

  5. Mike (not you) said, on January 11, 2010 at 5:40 pm

    This sounds like an interesting project. Obviously, only time will tell how fruitful it proves to be. Best of luck.

  6. Josh Blackman said, on January 11, 2010 at 5:56 pm

    Excellent idea! I blogged about your project here

  7. Leah said, on January 11, 2010 at 7:14 pm

    As the second person in line for the Caperton v. Massey Coal argument (6:00 a.m., snow on the ground) and a veteran of Duke basketball campouts (only the less strenuous grad student campouts), I have to say that this seems like a great (crazy) idea! I’m definitely signing up!

  8. Ned said, on January 11, 2010 at 8:20 pm


  9. Gil-Montllor said, on January 11, 2010 at 8:56 pm

    No tents…but is there a rule about bivouac sacks? With a thermarest and a -20 bag, you’ll be fine. If there’s some snow you could even form a wall to block the wind.

  10. Scott said, on January 11, 2010 at 11:27 pm

    Interesting thoughts about the political leanings of the Court due to a given climate. I have to think more about it.

    One point, though. You suggest that W advanced his conservative legacy with Heller, but I am relatively certain that the Solicitor General argued against the course taken by the majority in Heller. He asked for the court to find that an individual right existed, but also wanted the handgun ban to survive and have it face review at lower levels again.

  11. […] @ ONE FIRST January 11, 2010 Filed under: Miss Attorney Ma'am — missatty @ 11:21 pm Sent via BlackBerry by […]

  12. […] 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 […]

  13. […] only because it will be a Church-and-State blockbuster that will quite directly test F1@1F’s thesis, but also because it will likely take place in April.  And I will gladly trade midnight April […]

  14. […] this reason, by waiting out in line, I seek to test the Roberts’ Court’s sensitivity to its surrounding political climate as represented by […]

  15. […] 16, 2010 As F1@1F weekend reading, I am posting below a longer piece–previewed in my first post–that I wrote in early December on the Roberts Court’s seemingly […]

  16. […] has a really cool new blog called First One @ One First, which he explains in his opening post First Post @ First One @ One First: My name is Mike Sacks. I am a third-year law student at Georgetown interested in legal journalism […]

  17. Good Luck said, on January 18, 2010 at 3:39 pm

    you realize now, some gunner is going to try and beat you to the punch just to ruin your track record.

  18. Jamie Parks said, on January 19, 2010 at 4:55 pm


  19. […] and that the Court has formed its docket and made its decisions accordingly.  F1@1F’s mission is to test that hypothesis through oral argument and opinion analysis as well as interviews with […]

  20. […] He should also have camping experience from his undergrad days at Duke, but unlike me, he somehow avoided spending time […]

  21. […] readers, have fun digging through F1@1F’s archives – may I suggest starting from the start? Tagged with: Above the Law, Guide to SCOTUS […]

  22. […] This assertion defies facts.  In fact, I began F1@1F to explore whether the opposite holds true–that Chief Justice Roberts has guided the Court more modestly under Democratic electoral dominance than he had at the start of his Chiefdom.  From F1@1F’s very first post: […]

  23. […] analysis of cases and Court trends in a way that is both informative and easily understood. From Sacks’ first post: My name is Mike Sacks. I am a third-year law student at Georgetown interested in legal […]

  24. […] a sleepless frenzy one year and twentyish hours ago, I created First One @ One First.  I had no idea what to expect except for the inevitable freezing cold awaiting me a week and a […]

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