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... For We, The People

October 1, 2018

... For We, The People

The first Monday of October features a majestic ritual in our nation’s capital. Nine of the most powerful lawyers in America ascend the bench of the U.S. Supreme Court, led by the Chief Justice of the United States, where they hear the first oral arguments of the new term. As a member of the Supreme Court Bar, I get goosebumps every time I can sit in that courtroom and listen to learned advocates grapple with the justices. Watching those arguments is a privilege that I never take for granted. Make no mistake, it is a privilege because the Supreme Court provides no live video or audio feed of its proceedings for the benefit of the general public. The Supreme Court divides those who want to see an oral argument into two groups: members of the Supreme Court Bar, and everybody else. Members of the Supreme Court Bar are lawyers who meet a handful of requirements and pay a fee. When we want to watch a Supreme Court oral argument, we get into the court building by a side entrance, and are given a number. Members usually get a seat inside the court without too much trouble. If there is substantial interest in a case, we can listen to the oral argument piped in over speakers in an overflow room called the “lawyers’ lounge.” I am not aware of a single time that the court could not accommodate all members of the Supreme Court Bar who wanted to watch or listen to an argument and that includes arguments over marriage equality and the Affordable Care Act. The public gets no such special treatment. Non-bar members have to wait in a “public line” on the sidewalk. The safest advice is to get there early. For the court’s historic oral argument in the marriage equality case in 2013, the public lined up before 5 p.m. the day before. The same was true for D.C. gun case back in 2008. How many people in the public line will get a seat? It varies, but probably in the neighborhood of 60 people will be permitted to watch a full argument, out of potentially hundreds waiting. People have waited for hours, often in the cold and rain, only to be denied a seat. Instead, they are gathered in groups, and permitted to watch at the back of the court, standing for about three minutes, until they are shuttled out and a new group is allowed in for another three minutes. Is this really the best the court can do in 2018? Television has been around for more than 90 years, radio for more than 100. Why is it that only members of the Supreme Court Bar get to watch or listen to an oral argument live? Clearly there is no technical reason; neither is there a legal one. If the justices are camera-shy or afraid of oral arguments turning into spectacle — objections outweighed by equal access by the people — they can at least allow proceedings to be broadcast over radio, a technology older than the court building. Government of, by, and for the people requires nothing less.

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