My latest–and final–ABA Journal online column from the Court’s 2009-10 term is now live:
Solicitor General Elena Kagan’s first unabashedly straight answer of her confirmation hearings to become a Supreme Court justice came early in her 17 hours of questioning by the Senate Judiciary Committee this week. Ninety minutes into Kagan’s interrogation, Sen. Herb Kohl, D-Wisc., asked her for her opinion on cameras in the Supreme Court.
“I think it would be a terrific thing to have cameras in the courtroom,” said Kagan (Video). “When you see what happens there, it’s an inspiring sight…It would be a great thing for the court and a great thing for the American people.”
Twenty-four hours earlier, I was sitting inside the court witnessing its final session of the term. Like a dozen times before, I had sat through the night on the pavement outside to be among the few who would catch a glimpse of the inspiring sight to which Kagan, by virtue of her office, had a front row seat all this year.
But on Monday morning, I would have traded all of my own fond memories of new friends made and stories told over the past six months for the whole country to have seen the same moving scenes I saw.
Read the rest here.
Monday’s going to be a doozy. Last day of the term. Stevens’s last day ever. Decisions on Guns and God (Gays was decided yesterday), as well as a bit of man v. machine and what may be the financial industry’s own Citizens United.
But that’s not all!
About two hours after the Court lets out for its summer recess, the Senate starts its preseason tryouts with Elena Kagan.
I plan on being in the Courtroom and the hearing room. And my liveblogging the latter will hopefully be made more colorful by my sleepless Sunday night on the Supreme Court Side Walk.
That’s right: I will be conducting a my own final F1@1F campout for the term. I suspect it will be a fun one, as the Guns and God oral arguments had the earliest and most enthusiastic lines of the term – and Monday’s certainty of those decisions and the drastically warmer weather (plus the prospect of a stately nonagenarian screaming, “I’m Outta Here!” to a captive audience, tossing reams of paper into the air in a sign of aged defiance) point to a big turnout.
I’d love to see some F1@1F readers out there, too. If you’re planning on coming to the sidewalk, please do let me know.
Justice Kennedy is the only member of the Court yet to write an opinion from the October sitting. As of today, Salazar v. Buono remains the only case not yet decided from the October sitting.
The delay in Buono augurs a bitter split with lots of footnotes flying around. From the oral argument transcript, let me go out on a limb and say that Kennedy sided with the liberals on this one. Perhaps the conservatives–or, at least Scalia and Alito, by the write-ups–hoped the Court would rule more broadly than the standing issue that the rest of the justices ultimately focused upon. Or maybe the decision’s delay means that in Kennedy’s hands, the opinion did address the broader merits of whether Congress violated the Establishment Clause by transferring its ownership of a desert cross on government lands to a private entity so to avoid First Amendment suits.
Either way, perhaps the justices’ post-argument positioning triggered the Court’s December cert. grant to Christian Legal Society v. Martinez, which the justices had sat on since the spring. Wanting to make up for one (still totally conjectural) church-state loss with Buono, the conservative bloc may have sensed in CLS a big, broad win for the Free Exercise Clause.
The Court heard CLS on Monday. The justices fell to their familiar positions, but the conservatives’ (still totally speculative) gamble may have been for naught: Justice Kennedy didn’t seem at all convinced that the case’s facts had been sufficiently clarified to garner a ruling on the merits.
In the coming weeks and months, we’ll get the decisions. But whether I’m spectacularly right or wrong on what when down behind the curtain may have to wait until Justice Stevens’s papers go public. And for the sake of sating speculation, let’s hope Stevens will mimic Marshall and Blackmun‘s speedy release of their papers rather than follow Souter down the fifty-year memory hole.
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 argument write-up on Christian Legal Society v. Martinez is now up at ABA Journal:
From the justices’ questions at oral argument this morning in Christian Legal Society v. Martinez, it appeared as if the Supreme Court intended to begin its final sitting of the term by gifting Justice Stevens, the Court’s newly minted nonagenarian and retiree-designate, the opportunity to control how this morning’s case will be decided.
Read the rest here. Check back tomorrow for my Vox Populi column from last night/this morning’s CLS line.
Back home now for a few thoughts, a warm shower, a quick eat, and a cheap suit.
- Man, I really miscalculated on this one. My plan was to get out to the Court at 11pm so to beat the lone wolves that I expected would show up around 1am. But around 7:45pm last night, while the First Lady of First One @ One First and I were cooking dinner and watching an episode of The Wire, Josh Blackman sends me a text message telling me that he heard about 30 people had already lined up on the First Street sidewalk. Per this intelligence, the FLOF1@1F and I expedited our evening so to get me to the Court at 9pm. The intelligence proved accurate. I ultimately took placeholder #34.
- The first ones in line were a group of ten undergraduates from a constitutional law course at Eastern University in Radnor, PA. They arrived at noon. A few lone wolf law students from American University arrived a few hours later, followed at 6:30pm by a pack of Christian Legal Society members from across the country. By dawn, the line wrapped around East Capitol.
- I got some good interviews for the Vox Populi column and a few decent videos for the next episodes of Supreme Court Side Walk.
- The sprinklers that terrorized me during my overnight for the Citizens United rehearing in September made their return at 1:23 this morning. I only got a modest misting this time around. The same can’t be said for those who dethroned me.
- It’s always too cold out there, no matter how warm it gets relative to January’s deepest freeze.
I’ll have my reports from inside and outside of the Court up at the ABA Journal tonight and tomorrow. Stay connected to F1@1F for the links.
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!
The yet-to-be-scheduled case will be a double-barrel First Amendment shotgun, blasting out of one side Free Exercise Clause and freedom of association arguments, and on the other side Establishment Clause and sexuality discrimination concerns. Here’s Coyle on the case’s background:
The high court case, Christian Legal Society v. Martinez, asks the justices whether a public university law school with a non-discrimination policy can refuse to fund a religious student group because the group requires its officers and voting members to agree with its core religious beliefs, thereby excluding gay and lesbian students. […]
Last March, the 9th Circuit affirmed a district court ruling in favor of the law school. The three-judge panel, in an unsigned opinion, said, “Hastings imposes an open membership rule on all student groups — all groups must accept all comers as voting members even if those individuals disagree with the mission of the group. The conditions on recognition are therefore viewpoint neutral and reasonable.”
I can’t wait for this case–not 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 Showers for pre-dawn January Frostbite anyday.