F1@1F’s Farewell

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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Blackman on “Constitution Land”

This morning I noticed that my friend, Josh Blackman–indefatigable law blogger and President of the Harlan Institute—issued a press release announcing that the Harlan Institute is planning a theme park dedicated to the Constitution–Constitution Land. Incredulous, I chatted with Josh about it.  The interview is below.

• Sacks: Constitution Land?
• Blackman: Constitution Land is a theme park that the Harlan Institute is currently planning. This park will will immerse “we the people” in the Constitution of the United States. Through virtual reality simulators, thrill rides, and entertaining shows, visitors will be able to experience our Constitution, and the Supreme Court, unlike ever before.
• Sacks: Really?  A Constitution theme park?  I didn’t realize you were that much of a fundraising machine.
• Blackman: Our supporters realize that interest in our Constitution is greater today than at any point in memory. We see people actually reading from that document and asking how it affects our rule of law and the government. Constitution Land represents an attempt to quench that curiosity in a fun and innovative way.
• Sacks: Do you think people will actually visit?
• Blackman: If we didn’t think people would visit, we would not be working on this ambitious plan. People visit Colonial Williamsburg and other historical sites. But there is no entertaining destination dedicated solely to our Constitution. We believe that Constitution Land will target that niche. Specifically, our planned location in Valley Forge, Pennsylvania is proximal to the Philadelphia, the cradle of liberty, and home of countless museums and national parks.
• Sacks: Are you actually going to build rides, or will this be more of a museum?
• Blackman: This is not your forefather’s museum. This is a fun theme park in every sense of the word–except you may just learn something. In addition to exhilarating thrill rides based on landmark Supreme Court cases, Constitution Land will feature virtual reality simulators that explore how cases developed, and what will become of our law. Finally, shows, and first-rate accommodations will make a visit to Constitution Land a must for anyone who wants to learn more about the supreme law of the land.
• Sacks: What ride do think will be the biggest draw?
• Blackman: I think the Originalist Time Machine virtual reality simulator will be pretty sweet. What would James Madison think about violent video games, gun violence, or mandating the eating of broccoli? With the Originalist Time Machine, you can ask Founding Fathers avatars–which are programmed based on their writings and philosophies–what they think about contemporary constitutional questions. Justice Scalia may definitely take a spin on that ride.
• Sacks: As long as he’s not tailgating the teacup in front of him!  I should be incredulous after all these details, but I’ve learned never to doubt your grand plans.  And you know my family’s in Philly, so when can I take my little nephew to Constitution Land?
• Blackman: While we are very early in the planning phase, we intend on breaking ground on Constitution Day, September 17, 2012.
• Sacks: Constitution day…nice touch.
• Blackman: Mike, I will save a seat in the first row of the Gibbons v. Ogden Flume Ride for F1@1F.
• Sacks: Most excellent, Josh.  Good luck.
• Blackman: Thanks Mike.

Blackman’s a beast.

OyezToday!

Most every Supreme Court junkie has done some time at the Oyez Project listening to Warren-era oral arguments and famous dissents from the bench, or clicking through the Court’s class photos all the way back to 1865.  One of my first app downloads upon upgrading to a smartphone was Oyez’s PocketJustice.

And this week, Oyez has released its latest iPhone app, OyezToday.  It’s free and it’s fun: I spent a few hours on a bus to New York yesterday playing around with the app, exploring its descriptions and media of this term’s cases.  Indeed, OyezToday is the Court’s watcher’s current events fix to complement PocketJustice’s historical inventory.

Get it!

Legislative Tangent Day

Please pardon my turning my attention towards Congress this afternoon, but I must plug two items lest that evil cloud consume the Capitol:

• The Atlantic’s politics page today published the piece, “How the Filibuster Wrecked the Roman Senate—and Could Wreck Ours,” written by Rob Goodman and Jimmy Soni.  I cut my blogging teeth alongside Rob and Jimmy back in 2006 at the now-defunct “18-24 Bracket” website, where they first introduced their brilliant policy minds to the Internet.  The two of them are now at work on a book about Cato the Younger, the indefatigable and incorruptible Stoic of the Roman Senate.  Here’s a teaser of their today’s column:

Whatever one thinks of the outcomes, removing decisions…from the legislature threatens accountability in general, and threatens the institution of the Senate in particular. In fact, the struggles of our Senate are an example of a broader rule: legislatures that make obstruction a way of life tend to get bypassed.

Some of the best evidence for this comes not from the recent past but from ancient history — history that was familiar to our classically-educated Founders. The Senate of the ancient Roman Republic was the first legislature to use the filibuster, the first to abuse it, and the first to suffer the consequences.

One Roman senator, in particular, had a special fondness for the host of obstructionist tools scattered across Rome’s constitution: Cato the Younger, Rome’s fiercest traditionalist and the leading voice of the optimates, the Republic’s conservative elite.

• Please check out the Congressional Clerkship Initiative, begun in 2005 by 145 law school deans and now spearheaded by Georgetown Law’s Federal Legislation Clinic.  From the Initiative’s website:

Article I of the U.S. Constitution establishes Congress as the federal government’s “first branch” and the primary author of federal law. Congress is, appropriately, also the branch most accountable to the people. Of the three branches, however, Congress is by far the least influential on the legal community’s constitutional perspective.

One major reason is that Congress is the least accessible to new lawyers in their formative first years: Congress lacks a program similar to the judiciary’s clerkship program, or the Honors programs at executive branch agencies.

The legal community is also missing out on the opportunity to have its rising stars learn about legislation–the bread and butter of federal legal practice–from the inside. In contrast, the consistent flow of lawyers through apprenticeship programs in the courts and executive branch agencies has given the legal community a deep and constantly renewed grounding in judicial and administrative lawmaking.

Congress is missing out, too. Basic legal legislative work–statutory research, drafting, and analysis–often gets short shrift in busy Capitol Hill offices, reflected in shortcomings in Congress’s legal product. Congress would benefit from the fresh perspective, energy, and legal training of these temporary hires in their first years after law school, focused on the legislative branch’s legal work.

Legislation has been moving in Congress in recent years to establish a legislative law clerk program. This website provides a focal point for these efforts, and explains how you can help make this program a reality.

Jost on Cameras in the Courtroom

Ken Jost, the Supreme Court editor at CQ Press, has put together a lengthy and comprehensive analysis on all things “Cameras in the Court” in a new report for CQ Researcher.  I’ve seen a copy–which includes a sidebar interview with me among its 20-plus pages–and the report really achieves the impossible by making the otherwise well-trod topic quite interesting by exploring its unnoticed nuances and taken-for-granted history.  An excerpt introducing the report is available at CQ Researcher’s blog:

[E]xcept for the working press, members of the Supreme Court bar and invited guests, all visitors to the Supreme Court face a time-consuming process in trying to see the justices in action. Would-be spectators typically line up hours in advance to claim one of the 250 seats available for the general public. At least 50 spectators are allowed to stay for an entire, hour-long argument, but others are ushered in for only a few minutes.

Camera-access advocates have been making their case over the past decade in large part by emphasizing the public’s limited access to the courtroom. “There is no reason why in the 21st century the American people should not be able to watch their democracy in action, and the Supreme Court should not be an exception,” says Nan Aron, president of the liberal Alliance for Justice. The alliance was part of a 46-group coalition led by the American Civil Liberties Union (ACLU) that urged the lame-duck Congress last year to pass legislation either requiring or calling on the Supreme Court to permit live TV coverage.

The pressure from Congress and outside groups has helped prompt the court to make audio recordings of arguments available sooner and more widely than in the past. But the justices have not allowed camera coverage of proceedings, whether live or delayed.

The three justices vocally opposed to cameras — Antonin Scalia, Anthony M. Kennedy and Clarence Thomas — warn that TV coverage could hurt collegiality on the court and endanger the justices’ personal security. Scalia has also complained that TV coverage would reduce the Supreme Court to “entertainment.”

This excerpt, however, hardly does justice to the breadth and depth of the full report, which you can purchase in print or electronic format at CQ Press.

My own take on the topic can be found here and here.

Friend of F1@1F Ryan Malphurs in WaPo

In this morning’s Washington Post, Bob Barnes features Ryan Malphurs’s newly-published study on the effects of laughter in the Supreme Court:

The Texas litigation consultant studied all the notations of laughter during the court’s 2006-2007 term, and discovered a few more himself while listening to tapes.

He found that fewer than half the comments were directed to the lawyer in front of the justices, or even to the argument he or she was making.

The rest were self-referential, or about the court, or about some third party, such as Congress or government in general.

In scholarly fashion, Malphurs – who studied the court for his communications dissertation at Texas A&M – looked for deeper meaning:

“The justices’ laughter diminishes formal control and power barriers, facilitating communication amongst themselves, between the justices and advocates, and with the audience members as well.”

I met Ryan on the Supreme Court sidewalk before the first day of the term, where he gave me a preview of this study as we paced in front of the Court trying to keep warm.  He stayed in line for the rest of that first week and later, in a post for F1@1F, reflected on his night with the crowd for Snyder v. Phelps.

Congratulations on the great press, Dr. Malphurs, and keep up the great work!

UPDATE (1/24/11): Adam Liptak of the New York Times gives Malphurs’s study a look.

Serota on Veterans Benefits

As we honor our veterans’ service today, I would like to recommend Michael Serota’s column at AOL News today challenging the constitutionality of the severe delays many veterans face in receiving their disability benefits from the VA.

Because of the severe psychological and physical trauma that service members endure, many veterans are unable to earn a living or support themselves. As a result, nearly 1 million veterans file claims every year seeking disability benefits to compensate them for the reduction in quality of life and impaired earning capacity caused by an injury they suffered while serving the country. These benefits can be a financial lifeline, especially since such a high percentage of the injuries incurred on the battlefield are so debilitating. Indeed, for many veterans, disability benefits are the only thing protecting them from home foreclosures, bankruptcy or even homelessness.

The VA denies about 11 percent of the nearly 1 million benefits claims filed each year, forcing these veterans to enter the VA’s dreaded appellate system, often referred to as “the hamster wheel.” The average time a veteran must wait for a benefits claim to work its way to a decision from the VA’s appellate body, the Board of Veterans Appeals, is a mind boggling 4.4 years. Even then, a large portion of the board’s cases are remanded, forcing many veterans to begin the process all over again. […]

Fed up with the injustice of these massive delays, two veterans organizations, Veterans for Common Sense and Veterans United for Truth, filed a lawsuit in the Northern District of California in July 2007 alleging, among other things, that 4.4-year appellate delays are unconstitutional. Although the trial judge in that case made a factual finding that the average wait time for a veteran’s appeal was 1,601 days, he concluded that there was in fact no legal violation.

The case is currently pending before the Court of Appeals for the 9th Circuit, which can, and should, reverse the lower court and find that these delays violate the due process clause of the Fifth Amendment, which ensures that nobody will be deprived of property without due process of law. Previous court cases have already established that veterans benefits are “property” and that veterans have a constitutionally protected property interest in receiving those benefits through fair procedures. The question that remains is whether a 4.4-year delay constitutes due process.

Read the whole column here.

Captive Audience in the Snyder v. Phelps Line

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

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

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.