Last semester I did some research for Richard Lazarus which was used in his brief for S.D. Warren v. Maine Board of Environmental Protection. Yesterday the Supreme Court heard oral arguments for that case and two other important Clean Water Act cases. I’d blogged a bit about the project and how it was a high point in my semester, both simply in terms of feeling useful, and for providing a wonderful educational experience that’s sadly missing from most classrooms. If you want to see a top-notch brief, both in terms of craft and strategy, I’d recommend following that link above.
So, Monday night found myself, Lyco and the Jude-Walker hanging out in the Capitol Hill apartment of a fourth student who had also worked on the brief research with us. We we’re planning on spending the night and hopping on the Supreme Court public-viewer waiting line sometime around 4/5 am, with coffee and a will to stay on our feet until 7am, when the SCOTUS Police hand out passes marking your place in line for the 9am opening. However, our plans were foiled by the zeal of other court-watchers, who had created a line that was about 17 people deep by our 1am walk-by.
So we decided to call everyone else on our phone tree (mostly other students who had also done research on SD Warren, plus some interested attorneys) and hustle them down to the front of the court building. What followed was a fairly miserable night. Temps plunged down to the very low 30s, and we were stuck on the cement with a motley collection of blankets. Given that some of our number didn’t bring much in the way of gear at all, it made for a fairly cold and uncomfortable night. (Although I have no idea why I didn’t make a newspaper nest – really felt like I dropped the ball on that one when I finally though of it at 6am). I will, however, buy stock in smartwool.
Others on the line were more equipped, and some were less equipped. A grandfather, father, 10yr old son trio were next to us with only a folding chair and an extra sweatshirt. The son was a trooper, I have to say, being pretty chipper and non complaining throughout it all. I didn’t chat all that much with the other people on the line, but they included people from American Rivers, the EPA, the Justice Department. The nuclear family proved to be the Gerke family, from Wisconsin, basically the Rapanos of the 7th Circuit.
The worst part actually came when the sun was up and the police moved the line onto the marble, which was so cold it was radiating through the soles of everyone on it. I had on thick smartwool hunting socks (I took my shoes off in the 30 degree weather and was fine) and some snow mocs (a good thick rubberized sole and thinsulate all around.) I ended up balancing on the sides of my feet as though I was walking on very hot pavement in the summer. It was absurdly cold. People were standing on blankets to spare their feet.
Overall, the experience was one of physical trial. For the entire day I didn’t feel quite right – perhaps the complete lack of sleep, the biting cold, and the iron hard ground and sidewalk (my hip felt sore all day). It was distracting, but also kind of invested the experience with a kind of, dare I say, privilege? I felt I had earned the experience, and perhaps that invested it with a gravity that it might not have held for me were I my usual more irascible and cynical self.
When we received our tickets at 7:30 or so, the line had stretched out to well over 100. We were told there a shifting number of spots but that even on a day which would generate heavy interest (such as today) the first 40 people or so could reasonably expect to be let in. Our group was 18-23 or so. The next block of people went up to the upper 30s, so our choice to go on the line when we did seemed pretty good. I felt bad for those who showed up at 4am, then were denied admittance.
With tickets in hand we scattered about, using the restrooms in the building, and having breakfast in the cafeteria. It was amazing to see the SCOTUS bar and the interested parties milling about the court. Everyone was very well turned out, and I was there in my ankle length east German border guard’s coat and a black knitted wool cap (a gift from Lyco), both of which had served me well, but were very out of place amid the ubiquitous black suits and red/blue ties. After bumping in to Lazarus and some American River’s folk, and eating (pourable eggs never tasted so good), we all wound up back on line for the final bit of waiting.
At 9:something we led up the stairs (which reminded me of climbing up into every temple I’d ever climbed into) were herded into the lobby, through the metal detectors, and into the cloakroom/locker area, where almost off of us went through quick changes. With a switch or two, I revealed my just-short-of-a-suit ensemble, complete with dress jacket, light sweater, oxford, red and gold tie, and dress pants. Kind of a Glaswegian Donnish look. Lyco hopped into a suit. Jude Walker went with basic black. Others made similar changes to bump their sleep-on-a-sidewalk apparel up a notch or to for the highest court in the land.
We then were herded through more metal detectors and then into the courtroom itself.
The courtroom is an enormous cube supported by four pillars on the walls behind the bar and the back. On each side of the courtroom opposite the bar and the back, there are paired pillars (eight total) and brass grilles and doors underneath them. Above, there’s a frieze on each wall, depicting some scene of justice or lawgiving. The stone is a bit soft and muted looking and along with the faded-rose colored velvet drapes, provides an atmosphere that's less stark than the neoclassical outside of the building might lead you to expect.
From the floor, the justices look awfully low, their heads just visible above the crowd from the back of the courtroom, and the bench is hardly visible at all when seated in the deep pew-like rows (thankfully softened by shallow red cushions). The room (at least for the lay public) generates an immense sense of distance. That, combined with the high ceiling, the friezes, the almost church-like hush and slow movements of crowds, creates a kind of religious air. For anyone interested in the grand theatricality of law, watching the court in session and the juxtapositions of the many small traditions is a must-see.
As to the substance of the day, insofar as it can be separated from the atmosphere, the court announced two holdings, one mundane, the other surprising (although it's truly an exception affecting only 130 people or so, on the other hand it was unusual to see this after Raich, and I should look into how the two decisions square against each other). The Court then heard oral arguments for three very important environmental cases dealing with the reach of the Clean Water Act; Rapanos v. United States, Carabell v. Army Corps of Engineers, and S.D. Warren v. Maine Board of Environmental Protection.
I’ll blog a bit in a separate post about the skills of the advocates involved, but for the moment I have to say the Solicitor General, Paul Clement, was amazing. Prepared, tenacious, humorous, able to cut his losses and narrow the arguments through on the fly examples and arguments – he gave a clinic on how to effectively argue issues within a very narrow time constraint. One of the attorneys who camped out with us called him a rock-star. And that's about right.
Looking at the other attorneys (and briefs), I’m surprised at the range of skills shown (and not shown). It was also interesting to watch the ebb and the flow of the court. Thomas slept (or at least appeared to – he certainly asked no questions); Scalia hogged the vast majority of the time (and although he has a great voice, he did get the fundamental reason for the holding in Miccosukee wrong and thus inappropriately badgered the Attorney General of Maine out of his own ignorance); Breyer seemed kindly in his questioning but devastatingly intelligent, almost on another intellectual plane; Souter had some excellent practical questions; Roberts offered some good probing questions; Ginsberg was largely quiet but had a wonderful analogy; Alito had only a few questions which were well within the flow of the argument and which seemed not to indicate much of his thinking on the issue; Kennedy spoke only twice (I think) but did coax a laugh out of Thomas with a side-whisper.
After reading so many opinions, it was remarkably insightful (at least to me) to watch the justices in action, especially Scalia – who is a ball of jurisprudential contradictions. I wish someone would put together a video (not possible, I know) of the justices making their various legal arguments as watching that sort of thing might provide a very useful key into their thought process in a way the formal rulings might obscure.
In some ways also, the court was a theatre of the absurd - for I kept floating "out" of the legal mindset and thinking about metaphysics and linguistics (as well as the concept from Heraclitus, that you "can't step in the same river twice") and how those understandings might be used to analyize the court's actions from an "extra legal" perspective (in terms of the information they allow in to reach their decisions, and the relative weight that information has). Or at least to the extent that such processes are *suggested* by the patterns of questioning shown in oral argument.
It was also interesting to see how both parties in each case shied away from the absolute ends of their arguments - how I'd love to have seen someone say, "Well, yes, a state *could* ban all hydropower, but political opposition makes that as pretty damn unlikely as a state setting their highway speed limit at 10mph." However, the law seems to require the illusion that it controls all, or that other forces won't step in to balance it. Understandable but strange to watch how invested everyone is in that illusion, how bounded by the law. What it must be like for a family like Grenke, I've no idea - probably both frustrating and mystifying.
Afterward, Lyco and I went to a post-mortem at Georgetown Law, then we did some errands, bought some fish, and had some very stiff coffee and a canolli before heading home and collapsing after multiple metro rides. All told we were out of the house for 19 hours or so, with more prep time before that.
This morning I’m relaxing with coffee, warm socks, and Yann Tiersen. I feel as though I’ve gotten back from a small trip to a strange land.