Vox Populi – 1/12/10

Posted in Vox Populi by Mike Sacks on January 12, 2010

“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.

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