Seating in the Courts of Appeals

The D.C. and Fourth Circuits used organized approaches to seating for high-profile arguments

|The Volokh Conspiracy |

Last month, I wrote a theepart series about my negative experience waiting on bar line at the Supreme Court. This post will recount my positive experience attending oral arguments at the D.C. and Fourth Circuit Courts fo Appeals.

On Monday, December 9, I attended oral arguments at the D.C. Circuit for Blumenthal v. Trump. Here, members of Congress alleged that President Trump violated the Foreign Emoluments Clause. Oral argument were slated to begin at 9:30. I arrived at the court around 8:15. At that point, a handful of people were waiting in the hallway outside the courtroom. A member of the court staff did an informal count, and told everyone what number he or she had. I was number 4. Around 9:00, we all lined up in number order. There was no confusion. A few minutes afterwards, we were escorted into the courtroom. By my count, there were about 20 reserved seats for the public. The rest of the seats were reserved for the press, guests of counsel, guests of the court, as well as law clerks. (There were far more than a dozen law clerks; I suspect clerks from other chambers also attended). This process was quite organized and efficient.

On Thursday, December 12, I attended oral arguments at the Fourth Circuit Court of Appeals for Maryland and D.C. v. Trump. Here, the state and the district alleged that President Trump violated the Foreign and Domestic Emoluments Clause. This proceeding was en banc, and there were fifteen judges present. (Judge Shedd, who took senior status in 2018, sat on the panel, but did not sit on the en banc court; I'm not sure why.) The hearing was to begin at 9:00. I arrived shortly after 8:00. The en banc courtroom was already open, and was divided into sections. Sections 1 and 2 were for guests of the parties. Section 3 was for the press. Section 4 was for the law clerks. (This section was, by far, the biggest, as each of the fifteen judges brought 3 or 4 law clerks to Richmond.) I was in Section 5, a section for the public. (I counted about 20 seats in this section). Court staff handed me a ticket that said section 5. This ticket allowed me to leave the courtroom to use the restroom or get a drink of water. Again, the process was extremely simple and straightforward.

Kudos to the D.C. Circuit and the Fourth Circuit. SCOTUS, you can do better.

NEXT: Today in Supreme Court History: December 13, 1873

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  1. You could replace the words “court” or “courtroom” with “kindergarten” and your review would still be valid.

    1. Sure, but that’s true in most cases.

    2. Um, Supreme Kindergarten? Kindergarten of appeals?

      1. I’d much rather my kids attend the Supreme Kindergarten than then District Kindergarten, though my son loves fruit, so maybe the Apple-ate Kindergarten is right for him.


  2. Shall I compare thy part series to a summer’s day?

  3. Is it really the court’s organizational abilities? Or is it that provincial yahoo lawyers are so lacking in initiative and imagination that, like the simple fools they are, they simply take the numbers they get from the court clerks and stick to them, while the lawyers who see Supreme Court cases are creative types, leadership materials, not sheep, in general much too big and important for yahoo behavior like that?

  4. It’s always easy to allocate a non-scarce commodity.

  5. I am not a lawyer but I thought Senior Judges didn’t sit on en banc appeals.

    1. In most (if not all) circuits, senior judges are allowed to sit on en banc cases if they were involved in the panel decision, although they are not allowed to vote on whether to take the case en banc in the first place. See 28 U.S.C. 46(c) and Fed. R. App. P. 35(a).

  6. Prof. Blackman, it’s also worth noting that the Fourth Circuit had an entire (large) overflow courtroom available, with a live video feed of the en banc argument, for those who weren’t able to fit in the en banc courtroom.

  7. Trump Fanboy Travelogue is a great new feature at the Volokh Conspiracy.

  8. I remember up until maybe the mid 2000’s one used to just be able to walk right into the Supreme Court maybe 10 minutes before they opened and find a seat. Rarely, even in high profile cases, would the gallery ever be packed. The internet really has given the Court a lot of visibility. Prior to that it was sort of a “black box” in our federal government. Media would cover it. Politicians would talk about it when campaigning. There might be some interest in nominations. But, there was no popular interest in the workings of the Court. In the last decade that has all changed (and for the better).

  9. I’m glad Prof. Blackman is riding this particular hobby-horse. It may seem like a kind of silly issue, but access to the courts and public trials and court proceedings are an important aspect of a democracy.

    1. Given the almost total abolition of jury trials, this seems silly indeed.

  10. Libertarians used to think America was “overlawyered.” Now they are even more submerged in law than in economics. Perhaps after a period of darkness the moral basis for libetarianism with reemerge.

  11. Good on them, but the D.C. Circuit’s “no reading briefs if you’re in the audience” rule is dumb.

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