Before we get too far away from the event, let’s reflect on the fact that — once again — folks had to sleep on the sidewalk for days to see or hear the Supreme Court at work.
Some of those in line for Masterpiece Cakeshop v. Colorado Civil Rights Commission, the case of the Colorado baker who refused to make a wedding cake for a same-sex couple, waited for four days. In the end, about 50 or so got a golden ticket, according to those in line. Some who waited were turned away.
This is becoming the norm when the court takes up big issues — gay rights, gun control, abortion, affirmative action.
Cases with lesser profiles can also be cause for all-nighters. The first people seeking admission to recent oral arguments in New Jersey’s bid for legalized sports betting got in line at midnight for a 10 a.m. argument.
Some of those who care about the court are disturbed at the scenes of paid line-sitters and the collection of camping chairs, bedrolls and tarps that make life a bit more comfortable for those who wait in often dismal weather.
Kannon Shanmugam, a former clerk to Justice Antonin Scalia and a lawyer who frequently argues before the court, says there must be a better way.
In a tweet, he said: "Paid line-sitting at #SCOTUS is unseemly. But more generally, people shouldn't have to line up in the cold for days to get into a public court hearing. Whether it's some form of broadcast or something else, the Court should come up with a better solution."
Everyone knows, of course, that cameras are not allowed in the Supreme Court, and years of calls from Congress, the media and the public to open up the proceedings have left the justices unmoved. Not one of the nine favors televising the court’s arguments.
No live audio, either, or even the same-day release of a tape. The court turned down a specific request in Masterpiece and has been less and less likely to agree in similar big cases.
For reasons the court has never fully explained, audio of the court’s Monday, Tuesday and Wednesday arguments is made available on Friday. It’s not a technology problem: The court once released same-day audio by mistake.
Justices have worried that cameras or even live audio would change the solemn process by which they do their work. Educating the public about the process would be good, Chief Justice John G. Roberts Jr. has said, but the court’s most important job is deciding cases.
The court is reluctant to change a procedure it believes is working. This, even as federal courts around the country are allowing in cameras and making audio more available.
Shanmugam, who argues before federal appeals courts across the country, said more and more offer either live audio or same-day release of recordings, with no discernible effect.
There are two lines for those seeking admission to the arguments — one for the public and the other for members of the Supreme Court bar. He was glad the court in October 2015 banned paid placeholders from the “lawyers line.” Members of the bar must hold their own spots if they want to get in.
Gabe Roth, executive director of Fix the Court, a group that seeks greater Supreme Court transparency, notes that even with audio there would be some who want to be physically present. He suggests some sort of lottery.
"Even if a lottery created a secondary market, that would still be an improvement over the current situation, where line-standers are often paid thousands of dollars," his group said in a statement.
It was line-standers who started the rush in Masterpiece. At noon the Friday before the Tuesday argument, 18 people began the queue, holding spots for members of Alliance Defending Freedom, the conservative legal organization representing Jack Phillips, the baker at the center of the case. Others quickly got in line behind them.
Martin Naunov, who wrote his college dissertation on the Masterpiece case, was on the bus from New York when he learned the line had already started. He had meant to stay with a friend for a day or so.
But he went straight from Union Station to the court and got in line with nothing but his bag. Generally, he’s quite chipper about the experience.
When he arrived, he said he thought, "Okay, this is what democracy looks like." When he found out the folks in front of him were professional line-sitters, he said he thought, "I don't think this is exactly what democracy looks like."
But the professionals became mentors. They held his spot — he was No. 25 — and sent him to the Walmart on H Street NW to buy an umbrella, tarp, sleeping bag and blanket. He and others in the line formed something of a community, and they held one another’s spaces so they could go get something to eat or, in Naunov’s case, go to a friend’s house for a shower.
He found the oral arguments “excellent” and loved the experience. But he is 23 years old and, as he noted, able to take off time from his work as a paralegal to be able to do it.
The early lineup of the professionals may have cut down on the number of people in line.
Brittany Shalla, a 25-year-old law student at Catholic University, was initially turned off when she saw the line began that Friday. But that Sunday, she checked Twitter — searching for the hashtag #SCOTUSline — and saw the line hadn’t grown much. She and two friends arrived that evening.
“Going into it, I was a little upset that the only way of being informed was sitting outside for days and praying you get it,” Shalla said. One of her friends gave up Monday morning, and Shalla called two friends at Georgetown Law to join her.
She, too, loved the experience and was amazed to see the court in action, something she’d only read about before. She also recognizes that not everyone has the kind of student schedule that allows for days in line.
Those in line respectfully debated the case for hours on end, Shalla said, building something of a symposium on the First Amendment and unlawful discrimination.
It was sometimes too much of a good thing. “Oh, my gosh,” she thought as she finally entered the court Tuesday morning. “This is the last I want to hear about this case.”