My Experience on the Supreme Court Bar Line for the DACA Case

I arrived at 3:11 a.m., and almost did not make it into the Court

|The Volokh Conspiracy |

In a previous post I described the complicated process to attend oral argument at the Supreme Court. This post will recount my recent experience waiting on the bar line for DHS v. Regents of the University of California (the DACA case).

General Arrival Times

Generally, the public line for high profile cases begins to fill up several days in advance. Historically, however, the bar line has filled up much later. John Elwood, a frequent litigator before the Court, recounted that he showed up at 5:15 a.m. for NFIB v. Sebelius (2012), and sat in the front row.

But in other cases, the bar line began to fill up much earlier. For Obergefell v. Hodges (2015), Pam Karlan, another frequent litigator, arrived at the bar line at 2 p.m. the day before the 10 a.m. oral argument. (Though at the time, homeless people were paid to wait on the line; that practice was subsequently prohibited.)

Arriving on Line

The DACA case would be argued at 10 a.m. on the morning of Tuesday, November 12. My plan was to arrive around 3 a.m. Around 8 p.m., Steve Mazie of the Economist messaged me, and told me that no one was waiting on the bar line. So far, better than Obergefell. I went to sleep around 9 p.m. I dragged myself out of bed around 2:30 a.m., got ready, and hopped into a cab. (At that hour, it was less than a 10 minute ride to SCOTUS).

I arrived at the Court at 3:11 a.m. I quickly surveyed the line and counted about 20 people ahead of me. I took this count, knowing from experience that people would cut. (See my previous post.)

Waiting and Waiting and Waiting

The first person in line arrived around midnight, and brought a sleeping bag. Most of the lawyers in front of me on line were from immigrant rights groups supporting the Dreamers. They had brought folding chairs to sit on. I considered doing the same, but declined because I would have no place to store the chair when I entered the Court. How did they solve that problem? They had someone from their team stop by around 7 a.m. to pick up the chairs, as well as their bags, jackets, and other stuff.

For the first hour, the weather was mild, in the 50s. Then, around 4:00 a.m., the rain began to come down quite hard. The temperature also plunged quickly as the arctic chill approached. Overnight, the closest bathroom is at Union Station (a 10 minute walk). At 5:00, Starbucks opens on Pennsylvania Avenue SE.

First Street is eerily quite at that hour. The only people around are those waiting on line. Capitol Hill is dead.

The Line Grows

As time progressed, the line behind me continued to grow. Several friends arrived, including Andy Pincus and Carl Cecere. I also met a few attorneys that represented the University of California Regents, who were not able to obtain reserved seats. There were so many parties in the consolidated cases that junior associates were left out in the cold–literally. There were also some solo practitioners who took an interest in the case. Alex, the immigration lawyer who was immediately in front of me, travelled from Los Angeles for the hearing. He arrived about 10 minutes before I did.

Some of the immigration lawyers ahead of me said that there were about 25 people slotted for bar admissions, so there would only be 24 lawyers allowed in from the bar line. (This information is not readily available; perhaps the clerk's office discloses it if people call.) Every 15 minutes or so, I would walk up and down the line and take a count. I wanted to make sure that I stayed in that range.

As 4:00 turned to 5:00 and 5:00 turned to 6:00, I noticed that the line in front of me grew by at least two people. I say at least two, because I saw two people walk from the street into the line. They were warmly greeted by those on the line. Attorneys for the immigrant groups were apparently saving space for their colleagues. There may have been more people holding spots, but I am not certain. Admittedly, counting was hard. Many people stood under umbrellas and ponchos, and were huddled together in the cold. But I can say that at least two attorneys cut the line.

Entering the Court

Around 7:00, the chairs were collected, and everyone began to form a fairly well-defined line. I was #23 at this point.

Around 7:15, Senator Dick Durbin visited the line and stood for a few photos. He then hopped into a waiting black SUV to drive him (I suspect) across the street to the Capitol.

At 7:30, the Supreme Court police asked everyone to form a line on the plaza. However, this line quickly mixed with invited guests, including those who were being admitted to the bar. At this point, it became impossible for me to count what position I was in. After hours of braving the elements, the line completely broke down.

The Supreme Court police allowed ten people to enter the building at a time. At that point, each person had to clear security. If everyone went through the metal detectors promptly, in theory at least, the ordering of the line would remain the same. But if a person had to be wanded (for example, he had a metal hip), he would quickly lose his spot on line. Unlike the people on the public line, who received numbered tickets, the attorneys on the bar line have no way to record their number.

After walking through security, the attorneys lined up in the great hallway. As best as I could tell, I was still #23 on line. I was somewhat optimistic about getting in, but was nervous.

We would wait in the hallway for nearly an hour. Apparently there were some technical difficulties with the system them checks for bar membership. At one point, a person who appeared to be an IT specialist came over to check the computer.

During this time, it was not feasible to leave the line to go to the bathroom. If you give up your spot, there is no guarantee you would get a ticket to enter. At this point, some people had been waiting nearly 7 hours without a bathroom break.

Around 7:50, the line began to move. Two staffers ahead of me were handing out white tickets. As each person ahead of me was given a ticket, I noticed that the stack kept getting shorter and shorter. Alex, the immigration lawyer ahead of me, received the last ticket.

At that point, the staff gave me a blue ticket, with the #1 on it. This ticket would allow me to listen to the argument in the lawyers lounge. In the event that there was an empty seat in the bar section, I could be called up. The SCOTUS equivalent of an upgrade. I was not hopeful.

For the next 45 minutes, all of the attorneys with blue tickets waited patiently on line. Again, it was risky to go to the bathroom. You could lose your spot. As we approached 8:30, I asked the police when we would go up. He replied something to the effect of "When we are ready."

Around 8:45, we were finally asked to go up the stairs. At that point, the officer told us to form three lines, and the order in which we were in didn't matter. (There is no reason we had to wait in a single-file line for 45 minutes if we were ultimately moved out of line.)

At that point, we were only a few minutes before the start of arguments. The attorneys had to quickly check stuff into the lockers. (Several years ago, the Court prohibited attorneys from keeping their belongings in the Lawyers Lounge; this was an unfortunate change.) I had already stored my belongings in the lockers downstairs (tip!) so I went straight to the lounge. Soon, the lounge quickly filled up with attorneys, many of whom only arrived shortly after 9.

I asked one of the officers in the lounge if I was likely to get into the Court for the first argument. Candidly, he said no. The proceedings began right at 10:00, and I settled into my chair, where I planned to listen to the arguments.

At that moment, an officer announced that ticket #1 and #2 (the person behind me) would get into Court. We then had to quickly process through the secondary metal detectors, and be seated. By the time we entered the Court, lawyers were already moving for bar admissions.

I took a seat in the last row of the bar section, close to where the Justices' guests sit.

Readers of this post will likely identify several problems with this process. In the next post in this series, I will highlight what those problems were, and offer some suggestions to improve the process.

NEXT: Free People Don't Ask the Government for Permission

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  1. On February 20, 2002, I went to the Court to observe the Zelman v. Simmons-Harris oral arguments involving school vouchers in Ohio schools. I got to the Court at 5:00 am and was the first person in the Bar member’s line. The next person arrived about 15 minutes later. At some point, I noticed the guards inside the door were looking out at us. I jealously protected my #1 spot in line. It was a cold day, but I don’t remember what I did with my coat once they opened the doors and let us in (around 9:00 am, IIRC). Since I was first in line, no one cut in front of me.
    They did not have cards to give to the people in line and I don’t remember them counting us. Once the doors were opened, they moved part of the line indoors. The guards recognized me now and let me run to the bathroom without losing my place. I saw Ken Starr; I went over to talk with him. I had seen him several times in the last 2 years and he was always friendly (maybe because my then-employer had engaged his services). A little while later, I saw then-Ohio Attorney General Betty Montgomery and then-Ohio Speaker of the House Joanne Davidson. Montgomery knew me because I had worked on her 1994 campaign. I introduced her to Kenn Starr (while her office had engaged his services, they had never met before).
    Then it was back in line. Eventually they let us into the courtroom. There were a lot of celebrities and a lot of Ohio elected officials. I saw Ted Kennedy, Bo Derek (now working for a conservative family rights group) among others. I don’t remember much about the arguments; they were not as fun or good natured as the first ones I observed a year earlier.

    1. You were able to get into that argument, but you couldn’t get off the Death Star before Luke destroyed it?

  2. The guards should issue numbered cards to the attorneys when they first show up in the bar line (as for the regular line). This would avoid line cutting, or worrying about losing your place in the line by taking a bathroom break.

    1. Distribution by queuing depends on making people wait. If you hand out numbered cards, then people can show up weeks before the hearing and pick up a card. At that point, you’re distributing slots by whoever is sufficiently close to get there after arguments are announced. (Which at least has the advantage of not making people stand outside overnight, but might result in a crowd of people hanging around when they expect arguments to be announced – if *they* end up standing in line, then it’s arguably worse).

      Personally, I’d allocate the spots half by lottery and half by an online auction with the proceeds to go to a worthy charity.

      1. They could solve that problem by only distributing the numbered tickets on the morning of. It would still prevent line-cutting and allow people bathroom breaths.

        1. And then you’d have a line forming ahead of the scheduled handing out of numbered tickets.

          All pay. Money or time, one or the other.

          1. One way out of having people pay is to distribute by lottery (assuming that the tickets can’t be transferred). That’s also a little unsatisfactory because it doesn’t allow the people with the greatest need for the tickets to be able to signal their relative interest, which is why I proposed the hybrid lottery/auction.

            1. How many people actually need to attend? What is it that they can’t accomplish without attending the hearing, aside from bragging that they were there?

              Still, I sort of like the hybrid system you propose. Why not take the opportunity to raise some money?

              1. How many people actually need to attend? What is it that they can’t accomplish without attending the hearing, aside from bragging that they were there?

                That’s the key. So much of SCOTUS practice is a status competition. (See, e.g., the clerkships, the boutique practices, who orally argues cases, etc.)

                I mean, what we actually should do is have a straight non-transferable ticket lottery for everyone but the litigants (defined narrowly) and arguing counsel and perhaps one assistant. And then we should televise oral arguments so everyone else gets to see them anyway.

                But the Supreme Court, for whatever reason, LIKES status competition.

              2. If the court would join the 20th century and stream video to the world, it wouldn’t matter.

        2. If you distributed numbered tickets starting at a specific time, you’d get a line to get the numbered tickets.

          You could outlaw the line, but then you’d get a scrum or a race or something.

          1. Or you hand out numbered tickets the day before, and the day of do a lottery to see who gets in. Problem solved.

      2. The Court could issue (for a daily rental fee plus a deposit far exceeding the cost of the monitor) ankle monitors w/GPS and/or other radio technologies and install them on the ankles of those waiting (“waiters”). A waiter is considered “in the waiting area” when determined to be within a fixed area reserved for those waiting. Monitors would be associated with a specific argument day.

        One option would then be to determine admittance order by the total time the waiter is in the waiting area. Perhaps time would be counted on a sliding scale with hours closer to the open of the court counting more than hours long before the opening of the court (to deter waiters from showing up and waiting two hours a day for weeks in advance when it happens to be convenient for them and/or the weather is nice thereby getting a high admittance number just because they work nearby).

        Another option would be admit waiters based on the order the monitor was assigned but to grant “away time” of, perhaps, five minutes per hour that the waiter is actually in the waiting area. The “away time” credit could max out at perhaps 20 minutes – use it or lose it. If the wearer is away for more than the “away time credit” they have, they lose their place and much of their deposit.

        An app could be developed that would allow each person to determine where they were “in line” (but not where any other specific waiter was — we wouldn’t want to make it too easy for one waiting lawyer to have other lawyer ahead in the virtual line kidnapped to get them out of line!). The app would also show the current line metrics so people could easily decide “Naw, its unlikely I’ll get into the Court today — I’ll go back to bed” and not even bother to show up and get a monitor.

        Waiters could turn in their monitors before the opening of the court and get their deposit back, halt the rental fees, and lose their place in line. If they didn’t “make the cut”, of course they would also get their deposit back. If they turn in their monitor within 24 hours of the court opening the assigned day, the waiter gets their deposit back even if they would have made the cut but didn’t show up in time. All other waiters lose their deposit.

        Some system for a case or an entire court day being cancelled would need to be arranged (presumably, waiters would have the option of getting back both their rental fee and deposit in that case — and/or perhaps an option to record a waiting time “credit”, upon showing “Real ID” and registering to use that credit when one or more of the cases is actually heard).

        This could probably be done by using vending machines and the waiter would have to “self affix” the monitor within an “affixing window” after receiving it. Self affixed monitors would need to be locked in place within the affixing window and officials would have to check, upon entry, that they were tight enough not to be removed and transferred to another person (if they could have been transferred, the waiter is rejected, the monitor taken, and the waiter’s deposit forfeited).

        Accommodations would need to be made for disabled people who, for example, may be missing limbs so could not lock the devices on properly.

        (Complicated technological solutions for simple problems – the hallmark of having too much time on one’s hands… Well, off to solve the secure voting problem…).

    2. “Ticket number 64, your oral argument is ready.”

  3. Interesting. But Josh, do really expect “government” to be interested in improving a process? One look at the USPS, DMV, etc. makes it clear they have no real interest in improvements especially for the proles.

    1. Supreme Court bar members aren’t proles, they’re lawyers admitted to practice in the highest court in the land. If *they* had to wait out in the cold I can only guess what the proles went through.

    2. “DMV,” the go-to for overly simplistic government criticism. You win a gold star!

      In all fairness, my local DMV locations are run much better than the Supreme Court bar line.

      1. I can only speak to the friendliness of my local DMV, and they are friendlier than portrayed in that right-wing propaganda series, The Simpsons.

  4. Normal people don’t wait in line overnight or at 3 am to hear an oral argument in a court. Its not even that important of a case.

    1. For once, we agree.

      Wouldn’t it be easier just to read the transcript later?

      And it sounds like someone could do a brisk trade selling coffee to the idiots waiting in line all night.

      1. With a sideline of holding spots, for a charge of course, while the coffee-buyer takes a bathroom break later.

        1. Good idea. Maybe you could also set up a porta-potty or two and charge for using it.

          This has some real synergy with selling coffee.

      2. “Wouldn’t it be easier just to read the transcript later? ”

        God yes.

        They also release a “tape” recording w/o video at the end of the week.

      3. But then Blackman wouldn’t have this story to post about!

        1. After the subtweeting story, I don’t think he’s hard up for topics.

    2. Not important to you, you mean. It’s important to a lot of other people. Even the dullest Supreme Court case is the most important case in the world to someone. I would think the legal status of hundreds of thousands of people would be quite important to a fair amount of people.

    3. It’s not that important unless your legal residency hangs on the outcome, I guess.

    4. Bob, you are going to get some bipartisan agreement on this one.

  5. Does anyone know how many tickets parties are given these days for co-counsel, client reps, etc.?

  6. Two staffers ahead of me were handing out white tickets. As each person ahead of me was given a ticket, I noticed that the stack kept getting shorter and shorter.

    Amazing.

  7. This discussion has persuaded me that members of the Supreme Court bar should not receive preferential treatment with respect to observing arguments regarding which they are merely spectators.

  8. Howabout they just broadcast the whole thing on C-Span?

    LOL

      1. WHAT A CONCEPT

  9. “I arrived at the Court at 3:11 a.m.”

    Now THIS is dedication.

  10. The real solution.

    We need a bigger Supreme Court building. With stadium seating.

    Also, whoever the audience thinks loses oral argument is fed to the lions (regardless of which side wins the case), where each Supreme Court Justice is responsible for bonding with, feeding, and training one lion each.

    I like the idea of people who make oral arguments having “skin in the game.”

    I think this arrangement will solve not only the problems identified by Blackman, but many others that he didn’t even mention.

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