One of the defining features of the John Roberts Court is how rarely it’s accused of being tone-deaf. With a handful of exceptions, the conservative majority on the court has chipped, sanded, and whittled away at the law without need of a drop cloth. With a toolbox that includes judicial minimalism and constitutional avoidance, a penchant for overruling old cases without explicitly saying so, and an uncanny sense of just how much activism the public will tolerate, the Roberts Court has done a remarkable job of conforming its behavior to the prevailing public mood, resisting the impulse to go too far.
That second link? Yeah. Rock!
Law.com’s Legal Blog Watch writes up F1@1F. Thanks for the shout! LBW readers, enjoy your stay and come back often.
Thanks to Professor Randy Barnett for the VC shout. I just finished reading the first part of his book-to-be, Fundamental Rights in the Constitution and very much enjoyed his exploration of the Ninth Amendment‘s original public meaning.
Also, over the weekend, Professor Orin Kerr, another prominent Conspirator, suggested that I supply some information on how early one must arrive in line at the Court to get a decent chance of getting inside to hear an argument. Here are my preliminary thoughts:
- Be Before 50th: The Court reserves at least fifty seats for the general admission line.
- The “Dogs”: From my experience, if you get in line between 7 and 8 for the “dogs”–the technical cases without any newspaper coverage–you’ll get in. By “experience,” I mean the first oral argument I ever attended, Danforth v. Minnnesota, for which my father and I got in line around 8am, received numbers around 50, and were among the final ones seated inside the Court. Of course, despite no major awareness of Danforth in the news or general public, the case, like all SCOTUS cases, was still massively important for its area of law. Indeed, Prof. Kerr noted Danforth‘s major legal importance for criminal law and procedure over at VC in November 2007. This week’s cases, as far as I can tell, haven’t touched any public nerve, so I am taking this week off from the line. I leave it up to the Klingensmiths to tell me otherwise. Still, keep your eyes trained on F1@1F at the 10am hour should Wednesday see the release of Citizens United.
- The “Mid-Majors”: Get in line by 6am. Last week’s cases exemplify the “mid-major” cases: issues that attract the public’s attention without creating a frenzy. Briscoe mattered not as much for its subject matter, but rather for Sotomayor’s centrality in the fate of a year-old precedent. Comstock dealt with sex offenders (and, of course, the scope of the Necessary & Proper Clause of the Constitution), who are always interesting subject matter. American Needle fought against the NFL, which sounds cool regardless of the more mind-numbing aspects of antitrust law that really animated the case.
- The “Blockbusters”: Get in line before 4am…and that probably won’t be good enough. I got in line for the rehearing of Citizens United, also Justice Sotomayor’s first oral argument, at 11pm, thinking that there would already be a line at least a dozen people long. There wasn’t. I was first. The next batch of people didn’t show up until 3:45am. That said, for the super-blockbusters, prepare to eat your previous night’s dinner on the First Street sidewalk: friends of mine got in line at 4:30pm on Heller‘s Eve…they were around 40th. This term’s blockbusters–McDonald, Kiyemba, Christian Legal Society, Doe v. Reed—will likely draw its earliest linegoers at varying hours of which I am not yet qualified to predict.
Once again, thank you for coming by F1@1F. Although I will not be reporting from line this week, I will endeavor to keep the content flowing!