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(by Robert Barnes, The Washington Post) – Membership in the Supreme Court Bar isn’t nearly as exclusive as it sounds: Thousands upon thousands of lawyers have paid the $200 admittance fee even though they will never argue a case at the court. [A lawyer must be a member of the Supreme Court Bar to argue a case before the court.]
But one of the privileges of membership in the Supreme Court Bar is a separate and much shorter waiting line to see a Supreme Court oral argument in person. [The only way anyone can see a Supreme Court argument is to watch in person, since television cameras are banned.
The court announced on the first day of the new term [Monday, October 5th], something that previously had seemed unnecessary to spell out: “Only Bar members who actually intend to attend argument will be allowed in the line for the Bar section; ‘line standers’ will not be permitted.”
In other words, lawyers cannot pay someone to hold a spot for them when the court has a big argument — or even send one of the firm’s lowly associates [to stand in line for them].
Line-standing has become big business in Washington, where companies supply a placeholder [to stand in line for those who want to get into a Supreme Court oral argument, and also for lobbyists who want to get into a congressional hearing.] Line standers have become part of the spectacle of a major Supreme Court hearing, where people pay up to $50 an hour to have someone secure one of several hundred spots in the grand marble chamber.
A couple of years ago, Slate .com found that some were paying about $6,000 for the multi-day ordeal required to ensure admittance through the public line for an oral argument on same-sex marriage. Similar camp-outs have occurred when the court confronted Second Amendment cases and the Affordable Care Act [ObamaCare]. The court’s rule change did not change the rules for the public. [The court’s rules regarding the public line say simply: “Please do not hold a space in either line for others who have not yet arrived,” but they do not explicitly ban hiring someone to hold a place.]
… It is unclear how the new policy will be enforced, but as several attorneys noted, the need is rare.
“There are probably only two or three cases a year when there are line-sitters — if that,” said Kannon Shanmugam, a lawyer who frequently argues before the court. “But it is an unseemly practice, and the court was right to ban it.”
The court was typically tight-lipped about exactly how the change came about. “Court officials were aware of the increasing use of line-standers, and this new procedure attempts to end the practice,” public information officer Kathleen Arberg said when asked for an explanation.
But the scene before the hearing this spring on same-sex marriage probably had an impact. …
The courtroom has a maximum capacity of about 400, and some of these seats are set aside for the media and guests of the justices. At major arguments, there can be fewer than 100 seats available for the public; the bar section fluctuates between 70 and 100. … Lawyers who are not able to get seats are consigned to the lawyer’s lounge, a room outside the courtroom where they could at least listen live to the argument. The public doesn’t have such an option. [Although live audio of oral arguments is not available to the public, the audio recordings of all oral arguments heard by the U.S. Supreme Court are available to the public at the end of each argument week. The audio recordings are posted on Fridays after Conference.]
Gabe Roth, leader of Fix the Court, a group that advocates for greater transparency at the Supreme Court, said the court’s move shows that it at least understands there is a problem.
“The best way to meet the increased demand for entry into Supreme Court hearings, both from members of the Supreme Court Bar and from the general public, is for the court to end its broadcast media ban,” he said.
If nothing else, make the audio of the arguments live, he said, so the public has the same access as the lawyers.
Reprinted here for educational purposes only. May not be reproduced on other websites without permission from The Washington Post. For the original article, visit washingtonpost .com.
Questions
1. Why do lawyers become members of the U.S. Supreme Court bar?
2. What are “line standers”?
3. a) What action did the court take on line standers when it opened its 2015-2016 session last week?
b) Why did the court take this action?
c) The court’s announcement did not change the rules for the public. Do you think the same rule should apply to the public line? Explain your answer.
4. a) According to Kannon Shanmugam, a lawyer who frequently argues before the court, “There are probably only two or three cases a year when there are line-sitters.” Why do you think this is so?
b) How many seats are available in the courtroom? Be specific.
5. If a lawyer does not get a seat in the lawyers section for oral arguments, how can he/she follow the proceedings?
6. The Washington Post article states that there are companies that supply a placeholder for lawyers who want to get into a Supreme Court oral argument (and also for lobbyists who want to get into a congressional hearing). Why is this wrong?
7. Re-read the paragraphs 12-15. Then read the excerpt below from a National Law Journal report:
Judith Schaeffer, acting president of the Constitutional Accountability Center, admits that she has used a line stander, but only once—for the same-sex marriage arguments.
“My reaction as a bar member is that the court really should take a step back and consider what has brought the court to this step,” she said. “To me, it’s a very simple fact that many Americans as well as bar members are deeply interested in proceedings of the court. There is a very simple solution—live audio or preferably live video.”
Schaeffer noted that live audio of arguments are broadcast into the court’s lawyers’ lounge. “There’s no legitimate reason for the court not to share that with the public,” she added. “It doesn’t require new technology or cameras—just somebody with authority to turn that switch on.”
What do you think of Gabe Roth and Judith Schaeffer’s suggestions? Is there a legitimate reason that the American public should not be able to listen to the court’s proceedings live the way lawyers are able to in the lawyer’s lounge in the Supreme Court building? Explain your answer.
OPTIONAL QUESTIONS: Read the “Background” information below the questions.
1. a) How many of the approximately 7,500 cases that are sent to the Supreme Court each year are chosen to be heard by the Justices?
b) Between what months will the court be in session?
c) How many of the 9 Justices must accept a case for it to come before the Supreme Court?
2. What must a case involve for it to be considered by the Supreme Court for review?
Background
On the Supreme Court from BensGuide.gpo.gov:
- Approximately 7,500 cases are sent to the Supreme Court each year. Out of these, only 80 to 100 are actually heard by the Supreme Court. When a case comes to the Supreme Court, several things happen. First, the Justices get together to decide if a case is worthy of being brought before the Court. In other words, does the case really involve Constitutional or federal law? Secondly, a Supreme Court ruling can affect the outcome of hundreds or even thousands of cases in lower courts around the country. Therefore, the Court tries to use this enormous power only when a case presents a pressing constitutional issue. …
- The Supreme Court convenes, or meets, the first Monday in October. It stays in session usually until late June of the next year. When they are not hearing cases, the Justices do legal research and write opinions. On Fridays, they meet in private (in “conference”) to discuss cases they’ve heard and to vote on them. …
- Most cases do not start in the Supreme Court. Usually cases are first brought in front of lower (state or federal) courts. Each disputing party is made up of a petitioner and a respondent.
- Once the lower court makes a decisions, if the losing party does not think that justice was served, s/he may appeal the case, or bring it to a higher court. In the state court system, these higher courts are called appellate courts. In the federal court system, the lower courts are called United States District Courts and the higher courts are called United States Courts of Appeals.
- If the higher court’s ruling disagrees with the lower court’s ruling, the original decision is overturned. If the higher court’s ruling agrees with the lower court’s decision, then the losing party may ask that the case be taken to the Supreme Court. But … only cases involving federal or Constitutional law are brought to the highest court in the land.
EXPLANATION OF PROCEDURE FOR ORAL ARGUMENTS IN THE SUPREME COURT:
(from supremecourt.gov/visiting/visitorsguidetooralargument.aspx)
- A case selected for argument usually involves interpretations of the U. S. Constitution or federal law. At least four justices have selected the case as being of such importance that the Supreme Court must resolve the legal issues.
- An attorney for each side of a case will have an opportunity to make a presentation to the Court and answer questions posed by the Justices. Prior to the argument each side has submitted a legal brief – a written legal argument outlining each party’s points of law. The justices have read these briefs prior to argument and are thoroughly familiar with the case, its facts, and the legal positions that each party is advocating.
- Beginning the first Monday in October, the Court generally hears two one-hour arguments a day, at 10 a.m. and 11 a.m., with occasional afternoon sessions scheduled as necessary. Arguments are held on Mondays, Tuesdays, and Wednesdays in two-week intervals through late April (with longer breaks during December and February).
- The argument calendars are posted on the Court’s Website under the “Oral Arguments” link.
- In the recesses between argument sessions, the Justices are busy writing opinions, deciding which cases to hear in the future, and reading the briefs for the next argument session.
- They grant review in approximately 100 of the more than 10,000 petitions filed with the Court each term.
- No one knows exactly when a decision will be handed down by the Court in an argued case, nor is there a set time period in which the Justices must reach a decision. However, all cases argued during a term of Court are decided before the summer recess begins, usually by the end of June.
- During an argument week, the Justices meet in a private conference, closed even to staff, to discuss the cases and to take a preliminary vote on each case.
- If the Chief Justice is in the majority on a case decision, he decides who will write the opinion. He may decide to write it himself or he may assign that duty to any other Justice in the majority. If the Chief Justice is in the minority, the Justice in the majority who has the most seniority assumes the assignment duty.
Resources
Read more about the cases accepted by the Supreme Court for 2015-16 at the official website: supremecourtus.gov.
Although live audio of oral arguments is not available to the public, the audio recordings of all oral arguments heard by the U.S. Supreme Court are available to the public at the end of each argument week. The audio recordings are posted on Fridays after Conference at the U.S. Supreme Court website.
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