Social Distancing at the Supreme Court

How will the Supreme Court handle oral arguments in the future? I propose a ticket lottery.

|The Volokh Conspiracy |

Out of necessity, the Supreme Court is broadcasting telephonic arguments. At some point, the Justices will be able to resume holding session at the Court. Initially, at least, the sessions may be closed to the public: only the Justices and certain members of the press can attend. Eventually, our situation will improve to the point where some members of the public are allowed into oral arguments.

I am confident the Court will be able to figure out social-distancing in the chamber. People can be seated in a staggered fashion to ensure there is enough space between attendees. It is no longer feasible to pack the chamber, where people sit shoulder-to-shoulder. And people can be required to wear face coverings, like on planes. Plus, temperature checks may be required at security checkpoint. Regrettably, this new seating configuration will limit the already-small number of tickets available to the public.

But what about the Supreme Court line?  Earlier this year, I wrote a three-part series on the Supreme Court bar line (I, II, III). And SCOTUSBlog has published an excellent series on the Supreme Court's public line. For some high-profile cases, people join the line several days before arguments.

Even if the Supreme Court maintains live-streaming of oral arguments (unlikely after Flushgate), people will still want to be in the Court to experience the arguments live. Also, there is PR value: cameras are fixated on people who exit the chamber after big cases. It was significant when the Dreamers left the Court after the DACA case. Ditto when the Little Sisters of the Poor emerged in their habits. C-SPAN will not eliminate the line problem.

Can there be social-distancing on a queue that may last for days? Historically, the Supreme Court police have not been willing to police the line, at all. They refuse to intervene when people cut the queue. And they will not resolve any conflicts. That will have to change. If the Supreme Court maintains the current system, where a limited number of tickets are handed out at 7:30 a.m., people will still queue. Or more precisely, line-waiters will be paid to stand in crowded conditions for hours, or days on end. And the same people who huddled outside for days will then have to enter the Supreme Court to listen to the argument.

There are ways to promote social distancing on lines. For example, Shanghai Disney (which has re-opened) has placed physical markers on the queues to indicate where people should stand.

Would the Supreme Court place markers along First Street? Very, very unlikely. And being #1 on the line is no guarantee of entry. Can you imagine if someone fails a temperature check, and is denied entry, after waiting outside for 92 hours?

I propose a different solution: Eliminate the line altogether, and create a ticket lottery. I initially proposed this idea for the bar line, but it could work just as well for the public line.

Attorneys should be able to enter a lottery to obtain a ticket for a specific argument date. There should be a random drawing. Depending on demand, attorneys could request one argument per year, or one argument per sitting. Ideally, the requests should be made after the calendar for a given sitting has been announced. (It does not make sense to reserve a session before you know what case will be argued.) The requests should be made online through a system that verifies an attorney is in good standing. Confirmation can be sent by email.

Attorneys who lose the lottery, or do not make a timely request, can still show up the same day and wait on the bar line. They would be able to listen to the arguments from the lawyer's lounge. In the event that a lottery winner does not show up, one of the attorneys from the lounge can be upgraded to the chamber.

This process would eliminate most of the unfairness of waiting outside, including line-cutting. The lottery would also ensure that people do not travel at great expense for an argument they cannot attend in person.

If the lottery process is successful for members of the bar, it should be extended to the general public. It will be more difficult to implement a lottery for members of the general public, who are not vetted. But the process would be feasible. Adding a degree of randomness would ensure that people do not have to wait in the cold and rain for days outside the Court. Moreover, a lottery would ensure that a range of people from different backgrounds with different interests can attend–not just those who have the means to camp out for days on First Street.

The Court should be proactive here. A lottery can bring some semblance of fairness, and hygiene, to the process. The current queue is simply not sustainable.

NEXT: "The Constitution in the Time of Coronavirus" - Presentation at the Buckley Program on 5/11 at 4:30 E.T.

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  1. Good suggestions when you first made them. Good suggestions now. When I think of situations like this, where I simply cannot see any good-faith counter-arguments, I have to assume bad faith. And I have no idea why the 9 Justices are willfully doing this. (Or, to be precise, willfully unwilling to fix the current/past problems.) Like, what is the possible benefit to the Sup. Ct–or to any notion of open & fair access to observing our judicial system–by allowing me to pay others to wait in line for me, to allow me access to super-popular/important oral arguments, at the expense of those who can’t afford to do this?

    1. I’ll offer two quite egalitarian counterarguments.

      First, where in Article III does the word “lawyer” appear?
      While the parties have a right to appear, and while *their* counsel has a right to appear, I don’t see why lawyers in general should have any right to appear.

      Second, as I understand it, the press only has those rights of any citizen, and, notwithstanding that, bloggers are media. I know that courts have ruled that student newspapers are. Hence why do certain members of the press [have some inherent right to] attend?!?!?

      My solution is simpler — sell them to the highest bidder. The people willing to pay will do so because they wish to market their experience — either sell it as a story to the AP, or put it on your CV, or show support for a cause you really care about (e.g. dreamers, little sisters).

      And use the money to pay for indigent representation.

      1. You can’t sell them to the highest bidder. It’s a court, not a sporting event.

        At the end of the day, the problem is they don’t televise the arguments. If they televised the arguments, they could easily exclude everyone except the parties and their counsel, or keep 15 seats open and have a lottery, with no special preference for the press. Whatever.

        1. Indeed, were they not so opposed to televising the arguments, you could arrange for a VR system that would let people have the full experience of being there, from anywhere in the country. But then how would you prevent it from being recorded?

          But then who would bother? Getting to attend is valued just because it’s exclusive.

          1. Right, it’s no different from the velvet rope and the line of people outside of a popular club.

            1. The popular club probably has drinks and a dance floor, though.

          2. Right, and a government short of cash needs to sell the exclusive stuff….

        2. You can’t sell them to the highest bidder.

          Whyever not ? Twould raise a tiny amount of funds to relieve some of the taxpayers’ burden.

          It’s a court, not a sporting event.

          So what ? It’s not a ballet either. But why would the rationing by price of an oversubscribed court be a worse solution than rationing by price for an oversubscribed entertainment event ?

          What is it about a court that makes filthy lucre an inappropriate qualification for attendance ? After all, the contestants are seldom doing it for free.

          1. That courts are supposed to treat rich and poor alike?

            1. That applies to litigants. I’m not so sure it extends to spectators.

    2. where I simply cannot see any good-faith counter-arguments, I have to assume bad faith

      There are plenty of good faith counter arguments.

      This is a classic example of how to allocate scarce resources. In this case, that scarce resource is watching SCOTUS oral arguments.

      One (obvious) option would be to increase the supply. For various reasons the Court refuses to do this. This is particularly surprising given the minimal cost of broadcasting.

      If you have scarce resources, you have generally four options: (1) first come, first serve; (2) political privilege; (3) selling tickets; or (4) random allocation.

      The current system is a mix of 1 and 2. The lottery discussed here is a mix of 2 and 4. There is no reason we couldn’t switch to a straight sale of tickets, since that is what every other options devolves into.

      1. “One (obvious) option would be to increase the supply. For various reasons the Court refuses to do this. This is particularly surprising given the minimal cost of broadcasting.”

        Even if the court did allow live broadcast of oral arguments, there would still be separate demand for live attendance.

        Increasing the supply of live attendance would require a larger courtroom which is out of the court’s control.

        1. Nationals Park should be available for most of the Court’s term. 😛

          1. An interesting solution, but the cost would still probably put it outside of the court’s direct control.

  2. How about just live-streaming them?

    1. A lot of people would still want to attend live.

  3. How about, whomever stands in line, is the only one who gains entry. Why should the ability to expense line-standers be considered a public goal?

  4. “no longer feasible”

    Really? We have, according to articles by those who pay more attention than I do, a major pandemic every 7 to 10 years. We have major epidemics every couple years. 2017 was a bad year. 2009 swine flu, cholera pops up on a regular basis and kills many although mostly in 3rd world countries, 1968, 1957, 1918, 1915, 1910, the list continues. And yet somehow we’ve managed to muddle along as a species without restricting people’s ability to crowd into a room to watch something they wanted to watch. What else? Sporting events? Concerts? Is it “no longer feasible” to attend events with crowds?

    Another example of overreaction to something that has been happening as long as people have congregated in agrarian societies (and therefore cities) and will continue to happen as long as there are people.

    1. The goal is to defeat Trump.
      60 Minutes was particularly disgusting tonite.

      1. So, you think

        -The Chinese released this virus on purpose
        -The virus is actually not so big a deal, and hospitals are inflating the numbers
        -Liberal governors are crashing their state economies to spite Trump. Conservative governors are also because…reasons.
        -Liberal governors are also using this to indulge their tyranny and will never stop the lockdown if they can help it.
        -Soon, there will be blood. So much blood, and so soon.

        Do I have all your crazy correct?

        1. “-The Chinese released this virus on purpose”

          The Chinese obviously didn’t release the virus on purpose, it’s doing too much damage in China. OTOH, they clearly did, once they realized what was going on, make damned sure the rest of the world got it, good and hard, so that their relative position would not be compromised. They just did too many things that made no sense except as a way to maximize the spread outside China.

          “-The virus is actually not so big a deal, and hospitals are inflating the numbers”
          The virus actually is not so big a deal outside of a few large cities, and particularly NY, which has suffered so many Covid-19 cases that it warps our national statistics. (About a third of all Covid-19 fatalities in the US are in NY, and the majority of those in NYC.)

          You could have restricted severe social distancing and lockdown measures to just a handful of cities and metroplexes, and arrived at about the current statistics without the economy crashing.

          Remember, the goal here wasn’t to cause the virus to go away, just to keep it from overwhelming the hospital system. It got nowhere near overwhelming the hospital system anywhere except a few big cities. It never WAS going to overwhelm the hospitals outside a few big cities, outside cities everyday life is effective “social distancing”.

          But I can’t blame the mistakes on an effort to assure Trump’s defeat, because multiple countries made the same mistakes. There’s something else going on behind the over-reaction and mistakes. Maybe early on it was suspected of being an escaped biowarfare agent, and assumed it would be much, much worse than it turned out? Or just group think in political elites.

          “-Liberal governors are crashing their state economies to spite Trump. Conservative governors are also because…reasons.
          -Liberal governors are also using this to indulge their tyranny and will never stop the lockdown if they can help it.”

          Liberal governors are crashing their state economies because they’re control freaks, not to spite Trump. You got it pretty much: They’re using this as an excuse to indulge their inner dictators, and probably don’t even realize that’s what they’re doing, it feels to right.

          Conservative governors? Not so much economy crashing there, actually. There IS a rather conspicuous difference in how “red” and “blue” states are reacting to this.

          1. Brett, dunno if you want to take the banner of Ed.

            – I’m not white-knighting China, but we’ve had both the Secretary of state and a post on this very Conspiracy push the tin foil. As well as Ed with some bioweapons nonsense.

            -The rest of the world may take issue with the virus not being a big deal. Do you think the non-NY US is somehow different?
            I do agree that the flatten the curve reasoning has changed somewhat. NYC has not been overwhelmed, even as their rate goes down. Elsewhere in the US our social distancing has lagged, meaning our death rate has plateaued, which means we’re not out of danger. Moreover, our testing has lagged more than we thought it would, so now we’re waiting for that as well.

            As for liberal governors, Brett, I’m continually amazed by the cynicism of your imaginary liberal telepathy.

            The idea that conservative states’ economies are doing better is not in any evidence I’ve seen.

            1. “Elsewhere in the US our social distancing has lagged, meaning our death rate has plateaued, which means we’re not out of danger.”

              The death rate plateauing at below a level where the hospitals would be overwhelmed was all social distancing was ever supposed to accomplish. It can’t, in a strong sense, continue long enough to create and distribute a vaccine, and we just weren’t set up to do it thoroughly enough to just extinguish the virus. Social distancing assumed the virus continues to spread, and just slows it enough to prevent a disaster.

              The thing is, the evidence is that this virus doesn’t efficiently spread outside of dense cities. (Which is not a shocking revelation!) Outside the cities, just encouraging people to wash hands and wear masks would have been enough, without taking the economic hit of lockdowns.

              What I’m arguing is that a one size fits all response was stupid. The cities needed to be treated differently than the suburbs, which needed to be treated differently than rural areas.

              But our rulers tend to live in urban areas, so the idea that the whole nation doesn’t need to do what their own neighborhood needs isn’t penetrating well.

              1. I agree about the vaccine – it’s about testing. If you don’t believe me, check out the White House’s own guidance about re-opening.

                We’re not out of the woods until we get our testing/contact tracing infrastructure up. Which we should have had by now, but it’s the wild west out there. Three guesses who I blame for that.

                The thing is, the evidence is that this virus doesn’t efficiently spread outside of dense cities.
                Less efficiently, sure. But still pretty efficiently if the rest of the world is in the data set. Or George. Or maybe Florida, who has stopped reporting their death rate. Or just historically looking at pandemics that are airborne.

                No other country has been treating cities differently. I don’t think your narrative is supported, no matter how appealing to you it may be.

                1. “Three guesses who I blame for that.”

                  “C”, “D”, and “C”? Because I’m pretty sure Trump didn’t order them to contaminate the tests. Likely didn’t order the FDA to prohibit use of private sector tests, either. (Lay that on Bush, actually, “Emergency Use Authorizations” were his adminstration’s idea.)

                  I agree, no other country has been treating cities differently, so far as I know. Basically all countries suffer from the common problem that their ruling elites are urbanites, and tend to treat their whole countries as though they were cities.

    2. A few points to add:
      currently there are approx 80k US deaths due to covid19
      on a per capita basis – that is approx 1/3 of 1957 flu
      on a per capita basis – that is approx 1/2 of the 1968 flu

      The virus is too deeply embedded into the general population. As such, the shelter in place/lockdowns/ masks/ etc will only delay the development of immunity in the general population – and increases the likelihood of a nasty second wave in the fall due to lack of immunity in the general population.

      If the current approach is applied to all future pandemics, the human race will eventually evolve where it can only survive in a sterile environment. Not a good long term solution.

      1. Scientists disagree with your take.

        Science isn’t always right, but it’s pretty good at doing better than you pulling things out of your gut.

      2. and increases the likelihood of a nasty second wave in the fall due to lack of immunity in the general population.

        So you prefer having the second wave sooner rather than later?

        1. I prefer a mild second wave – Second waves have historically come in the fall. By delaying the development of immunity in the population during the summer, which is when viruses have historically been weaker, you greatly increase the risk of a harsh second wave in the fall.

          1. Where are you getting that? Because I don’t think that’s the conventional wisdom about epidemics at all.

            1. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5198166/

              good study on the second waves of the 1918, 1957 1968 & 2009 flu.

              In those cases, the second wave was partially due to the normal reopening of schools. With Covid, the young for the most part immune, where as older adults are the ones effected. therefore, the second wave will most likely be due to the delay in the adult population delaying developing immunity.

              1. Reviewing the History of Pandemic Influenza: Understanding Patterns of Emergence and Transmission

                CONCLUSION
                While insights can be gathered from past experiences of pandemic influenza, it is unlikely that the next event will mimic those of the past. Continued efforts are required to improve local, national, and international surveillance, coordination, and resource planning to most effectively mitigate and contain future pandemics. Despite all of the uncertainty surrounding pandemics, history has shown that influenza pandemics occur in cycles, albeit unpredictable ones, and that it is not a question of whether another influenza pandemic will occur, but when.

                I don’t see any support for “By delaying the development of immunity in the population during the summer, which is when viruses have historically been weaker, you greatly increase the risk of a harsh second wave in the fall.”

  5. “How about just live-streaming them?”

    That’d eliminate the annual “Running of the Interns…”

  6. The current format (on telephone) is far superior to the prior format where any justice can interrupt at any point. To keep a good thing going, they should continue doing the telephonic streaming, along with the telephonic rules, even after they have reassembled in the courtroom.

  7. Josh anticipates dumb mass hysteria pandemic pandemonium as the new normal?

    It’s a good time to be old. I have carefully made my ‘bed to lie in it’ now y’all Zoomers do it too.

  8. Wow.

    Only lawyers could turn something as simple as this into a subject of endless debate, and produce innumerable lengthy blog posts. “an excellent series on the Supreme Court’s public line?” Really?

    I realize that sounds snarky, but come on, people. More people want to attend than there are seats, and it’s considered inappropriate to charge, so just have a damn lottery already. That having a line is impractical is true but irrelevant. Even without the pandemic it’s a stupid approach.

    Oh. And do away with special privileges for the bar. There’s no particular reason they should get preferred treatment.

    1. Of course there is: Everybody making the decisions is a member.

  9. 1. Stop letting anyone attend who is not a party to the case.
    2. Use science and do away with bogus anti-social distancing and go back to the way it was.
    So flip a coin already.

    1. Do science to agree with me!

  10. A lottery does not take into account the degree of interest that any given individual has in any specific argument. It seems to me that tickets should be given out by the Clerk of the Court on a first asked, first given basis, because those with the most interest in a given case will have been following its progress through the lower courts and will presumably seek tickets to the argument in that case as soon as certiorari is granted. And for those who live hundreds or thousands of miles from DC, the Clerk can simply look at the postmark on any request mailed to the Clerk, or to the time of the email of the request is by email. And doing this through the Clerk’s Office will eliminate the “line space buying” problem that presently exists.

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