Membership in the Supreme Court Bar isn’t nearly as exclusive as it sounds: Thousands upon thousands of lawyers have paid the $200 admittance fee even though they will never argue a case at the court.
But membership has its privileges. One of them is a separate and much shorter waiting line to see a Supreme Court oral argument in person — the only way anyone can see an argument at the Supreme Court, where television cameras are banned.
The court announced on its first day of the new term Monday something that previously had seemed unnecessary to spell out: “Only Bar members who actually intend to attend argument will be allowed in the line for the Bar section; ‘line standers’ will not be permitted.”
In other words, lawyers cannot pay someone to hold a spot for them when the court has a big argument — or even send one of the firm’s lowly associates.
Line-standing has become big business in Washington, where companies supply a placeholder to, for instance, make sure a lobbyist gets into a congressional hearing. Increasingly, they have become part of the spectacle of a major Supreme Court hearing, where people pay up to $50 an hour to have someone secure one of several hundred spots in the grand marble chamber.
A couple of years ago, Slate.com found that some were paying about $6,000 for the multi-day ordeal required to ensure admittance through the public line for an oral argument on same-sex marriage. (The court’s directive Monday did not change the rules for the public.) Similar camp-outs have occurred when the court confronted Second Amendment cases and the Affordable Care Act.
The “lawyers line,” as it is referred to at the court, has always been a bit more genteel. “Usually, if you show up by 6 [a.m.] you’ll get in, sometimes even later,” said Pamela S. Karlan, co-director of the Supreme Court Litigation Clinic at Stanford Law School.
Still, for arguments in the same-sex marriage cases argued in April, Karlan took no chances. She showed up at 2 p.m. the day before the 10 a.m. hearing in Obergefell v. Hodges and found herself behind a long line of folks who did not look like members of the bar.
The homeless are often employed to wait in line. One asked Karlan to look after his spot “so that he could go to the shelter and get something to eat,” she said.
Karlan had come prepared: camping chair, “space blankets,” heavy coat, poncho — it rained during the night. In the morning, she turned over the blankets and gear to her less-fortunate line-mates as they were replaced by her well-dressed colleagues from the Supreme Court Bar.
It is unclear how the new policy will be enforced, but as Karlan and others noted, the need is rare.
“There are probably only two or three cases a year when there are line-sitters — if that,” said Kannon Shanmugam, another lawyer who frequently argues before the court. “But it is an unseemly practice, and the court was right to ban it.”
The court was typically tight-lipped about exactly how the change came about. “Court officials were aware of the increasing use of line-standers, and this new procedure attempts to end the practice,” public information officer Kathleen Arberg said when asked for an explanation.
But the scene before the hearing this spring on same-sex marriage probably had an impact. Jeffrey P. Minear — the counselor to Chief Justice John G. Roberts Jr. — and Supreme Court Clerk Scott S. Harris were among those surveying the scene and chatting with folks in line that they knew, Karlan said.
The issue shows just how difficult it can be even for the well-connected to secure a spot in the grand but confined courtroom. It has a maximum capacity of about 400, and seats are set aside for the media and guests of the justices. At major arguments, there can be fewer than 100 seats available for the public; the bar section fluctuates between 70 and 100.
Karlan, for instance, was seated just feet from the justices a couple of years ago when they heard U.S. v. Windsor, the challenge to the federal Defense of Marriage Act: she was co-counsel for the plaintiff Edie Windsor.
But the organization Karlan was working with had to secure a placeholder to make sure she got in to hear the previous day’s arguments concerning California’s Proposition 8, a constitutional amendment banning same-sex marriage.
Her camp-out in April got her a seat for the Obergefell arguments. But others who arrived shortly after her were consigned to the lawyer’s lounge, a room outside the courtroom where they could at least listen live to the argument. The public doesn’t have such an option.
Gabe Roth, leader of Fix the Court, a group that advocates for greater transparency at the Supreme Court, said the court’s move shows that it at least understands there is a problem.
“The best way to meet the increased demand for entry into Supreme Court hearings, both from members of the Supreme Court Bar and from the general public, is for the court to end its broadcast media ban,” he said.
If nothing else, make the audio of the arguments live, he said, so the public has the same access as the lawyers.