The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.
Breaking：look at these stickers in line-up area before security check
，keep social distance to avoid #speakmoistly #ShanghaiDisneyland #SHDL #上海ディズニーランド #Disney #Disneypark #Disneyland pic.twitter.com/6pj4xJ31Bk
— DONGDONG (@gourmetdyy) April 22, 2020
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.