The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In Part I of this series, I explained how to attend oral arguments at the Supreme Court. And in Part II, I recounted my experience waiting on the bar line for DHS v. Regents of the University of California (the DACA case). This installment will offer several suggestions to improve the Supreme Court bar line.
As a threshold matters, introducing cameras, or even a live-stream of the audio, will not fix these problems. Members of the bar can already listen to the arguments live from the lawyers lounge. The benefits of being present in the chamber are intangible: you can see, and be seen.
This post will offer some simple proposals that could even be implemented this term. I will then move onto reforms that would take some time to implement.
Currently, at around 7:00 a.m., the Supreme Court police issues golden tickets, numbered 1 through 50, to the people on the public line. These tickets ensure that people from the general public can attend oral argument.
The Supreme Court police should also issue numbered tickets to the bar lines: both the white tickets (which guarantee admission to the Court) and the blue tickets (which guarantee access to the lawyers lounge).
I recognize there is an immediate, and obvious objection. Tickets make sense on the public line, as everyone is eligible. But how can the Court ensure that the person who accepts the ticket is in fact a member of the bar in good standing. My response? Trust, then verify. Attorneys can receive a conditional ticket outside; once inside, and through security, they can provide their credentials, and receive a confirmed ticket. If, for whatever reason, a ticket is given to a non-attorney outside, he or she could be denied a confirmed ticket inside. Then, that seat could be given to someone in the lawyer's lounge.
The current system is extremely flawed. There is so much moving around and jostling as people enter through security--to say nothing of line cutters. A numbered ticket would provide a modicum of fairness to the process. Moreover, once a lawyer has a numbered ticket, he or she can then safely go to the bathroom or the cafeteria without fear of losing a spot. This problem is so simple to solve, and already relies on the structure used for the public line.
Even if this proposal is not adopted, once attorneys are given numbered tickets, they should not be required to stand on a line for another 45 minutes. They should be free to relax in the cafeteria--especially after having waited many hours overnight. Attorneys are members of the bar, and should not be treated like interlopers. They should be allowed to go upstairs, as other invited guests do.
The bar line process should be completely revamped. There is no reason why members of the bar, all well-respected members of the legal community, should be forced to wait outside in the freezing rain overnight, to secure an unknown number of seats, with no guarantee that they will be able to attend. I offer here several long-term proposals.
Create a Lottery for The Bar Section on Argument Days
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 Increase The Number of Seats Available on Argument Days
By my count there are about 90 seats in the bar section, and about 120 seats in the general section. I recognize that the supply of seats is fixed, and demand will always exceed supply. However, there is one way to increase the supply: decrease bar admissions when high-profile cases are being argued.
The difficulty, of course, is that bar admissions are often scheduled before specific cases are scheduled for oral argument. Many of the ceremonies are planned months in advance, to ensure people can travel to Washington, D.C. Moreover, each person who is admitted to the bar is entitled to one guest, who takes up a seat in the general area. Depending on the size of the group, between 50 and 100 seats may be occupied before any members from the public can enter.
I can think of three ways to free up seats on argument days.
First, the Court could separate bar admissions from oral arguments altogether. Large admission ceremonies would be scheduled for non-argument days. Though, there may not be enough non-argument days to entertain all of the motions.
Second, admission ceremonies could be scheduled separately for a special afternoon session on argument days. That is, arguments would be held at 10:00 a.m. And at 1:00 p.m. the Court would reconvene, and admissions motions would be considered. This additional session would no doubt create a constraint on Court resources. At a minimum, the Chief Justice would have to attend. But this alternate proceeding could free up between 50 and 100 seats in the visitors gallery for each case, depending on how many admissions there are. This change would allow more people from the public to attend, and more attorneys would be guaranteed admission with their guests. It is certainly a pleasant surprise that attorneys who are seeking admission can, by chance, watch a high-profile case. But that novelty is vastly outweighed by the need for those with a particularized interest to attend.
The third option would curtail a little known practice that occupies many seats. Once a case is scheduled for oral argument, attorneys frequently request to admit other attorneys on those dates as a means to secure a seat. I am quite familiar with this practice. Ilya Shapiro moved for my admission during the oral arguments for Zubik v. Burwell in 2015. We were both guaranteed admission; I sat a few seats away from Paul Clement. This process is somewhat ad hoc. During the DACA case, there were several attorneys who moved for admissions that were not planned well in advance. Other attorneys behind me on line told me they were unable to have that date selected. This process can be curtailed, perhaps limited to attorneys who were actually involved with the case.
On most days, the bar line operates smoothly. But on days with one, or two high-profile cases, the process simply does not work. These recommendations are offered in the hope of making the Court function more equitably to the general public, and to the bar. I am happy to talk with anyone at the Court about how best to proceed.