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Friday, November 22, 2019

My Experience on the Supreme Court Bar Line for the DACA Case

By Josh Blackman - November 22, 2019 at 08:00AM

In a previous post I described the complicated process to attend oral argument at the Supreme Court. This post will recount my recent experience waiting on the bar line for DHS v. Regents of the University of California (the DACA case).

General Arrival Times

Generally, the public line for high profile cases begins to fill up several days in advance. Historically, however, the bar line has filled up much later. John Elwood, a frequent litigator before the Court, recounted that he showed up at 5:15 a.m. for NFIB v. Sebelius (2012), and sat in the front row.

But in other cases, the bar line began to fill up much earlier. For Obergefell v. Hodges (2015), Pam Karlan, another frequent litigator, arrived at the bar line at 2 p.m. the day before the 10 a.m. oral argument. (Though at the time, homeless people were paid to wait on the line; that practice was subsequently prohibited.)

Arriving on Line

The DACA case would be argued at 10 a.m. on the morning of Tuesday, November 12. My plan was to arrive around 3 a.m. Around 8 p.m., Steve Mazie of the Economist messaged me, and told me that no one was waiting on the bar line. So far, better than Obergefell. I went to sleep around 9 p.m. I dragged myself out of bed around 2:30 a.m., got ready, and hopped into a cab. (At that hour, it was less than a 10 minute ride to SCOTUS).

I arrived at the Court at 3:11 a.m. I quickly surveyed the line and counted about 20 people ahead of me. I took this count, knowing from experience that people would cut. (See my previous post.)

Waiting and Waiting and Waiting

The first person in line arrived around midnight, and brought a sleeping bag. Most of the lawyers in front of me on line were from immigrant rights groups supporting the Dreamers. They had brought folding chairs to sit on. I considered doing the same, but declined because I would have no place to store the chair when I entered the Court. How did they solve that problem? They had someone from their team stop by around 7 a.m. to pick up the chairs, as well as their bags, jackets, and other stuff.

For the first hour, the weather was mild, in the 50s. Then, around 4:00 a.m., the rain began to come down quite hard. The temperature also plunged quickly as the arctic chill approached. Overnight, the closest bathroom is at Union Station (a 10 minute walk). At 5:00, Starbucks opens on Pennsylvania Avenue SE.

First Street is eerily quite at that hour. The only people around are those waiting on line. Capitol Hill is dead.

The Line Grows

As time progressed, the line behind me continued to grow. Several friends arrived, including Andy Pincus and Carl Cecere. I also met a few attorneys that represented the University of California Regents, who were not able to obtain reserved seats. There were so many parties in the consolidated cases that junior associates were left out in the cold–literally. There were also some solo practitioners who took an interest in the case. Alex, the immigration lawyer who was immediately in front of me, travelled from Los Angeles for the hearing. He arrived about 10 minutes before I did.

Some of the immigration lawyers ahead of me said that there were about 25 people slotted for bar admissions, so there would only be 24 lawyers allowed in from the bar line. (This information is not readily available; perhaps the clerk's office discloses it if people call.) Every 15 minutes or so, I would walk up and down the line and take a count. I wanted to make sure that I stayed in that range.

As 4:00 turned to 5:00 and 5:00 turned to 6:00, I noticed that the line in front of me grew by at least two people. I say at least two, because I saw two people walk from the street into the line. They were warmly greeted by those on the line. Attorneys for the immigrant groups were apparently saving space for their colleagues. There may have been more people holding spots, but I am not certain. Admittedly, counting was hard. Many people stood under umbrellas and ponchos, and were huddled together in the cold. But I can say that at least two attorneys cut the line.

Entering the Court

Around 7:00, the chairs were collected, and everyone began to form a fairly well-defined line. I was #23 at this point.

Around 7:15, Senator Dick Durbin visited the line and stood for a few photos. He then hopped into a waiting black SUV to drive him (I suspect) across the street to the Capitol.

At 7:30, the Supreme Court police asked everyone to form a line on the plaza. However, this line quickly mixed with invited guests, including those who were being admitted to the bar. At this point, it became impossible for me to count what position I was in. After hours of braving the elements, the line completely broke down.

The Supreme Court police allowed ten people to enter the building at a time. At that point, each person had to clear security. If everyone went through the metal detectors promptly, in theory at least, the ordering of the line would remain the same. But if a person had to be wanded (for example, he had a metal hip), he would quickly lose his spot on line. Unlike the people on the public line, who received numbered tickets, the attorneys on the bar line have no way to record their number.

After walking through security, the attorneys lined up in the great hallway. As best as I could tell, I was still #23 on line. I was somewhat optimistic about getting in, but was nervous.

We would wait in the hallway for nearly an hour. Apparently there were some technical difficulties with the system them checks for bar membership. At one point, a person who appeared to be an IT specialist came over to check the computer.

During this time, it was not feasible to leave the line to go to the bathroom. If you give up your spot, there is no guarantee you would get a ticket to enter. At this point, some people had been waiting nearly 7 hours without a bathroom break.

Around 7:50, the line began to move. Two staffers ahead of me were handing out white tickets. As each person ahead of me was given a ticket, I noticed that the stack kept getting shorter and shorter. Alex, the immigration lawyer ahead of me, received the last ticket.

At that point, the staff gave me a blue ticket, with the #1 on it. This ticket would allow me to listen to the argument in the lawyers lounge. In the event that there was an empty seat in the bar section, I could be called up. The SCOTUS equivalent of an upgrade. I was not hopeful.

For the next 45 minutes, all of the attorneys with blue tickets waited patiently on line. Again, it was risky to go to the bathroom. You could lose your spot. As we approached 8:30, I asked the police when we would go up. He replied something to the effect of "When we are ready."

Around 8:45, we were finally asked to go up the stairs. At that point, the officer told us to form three lines, and the order in which we were in didn't matter. (There is no reason we had to wait in a single-file line for 45 minutes if we were ultimately moved out of line.)

At that point, we were only a few minutes before the start of arguments. The attorneys had to quickly check stuff into the lockers. (Several years ago, the Court prohibited attorneys from keeping their belongings in the Lawyers Lounge; this was an unfortunate change.) I had already stored my belongings in the lockers downstairs (tip!) so I went straight to the lounge. Soon, the lounge quickly filled up with attorneys, many of whom only arrived shortly after 9.

I asked one of the officers in the lounge if I was likely to get into the Court for the first argument. Candidly, he said no. The proceedings began right at 10:00, and I settled into my chair, where I planned to listen to the arguments.

At that moment, an officer announced that ticket #1 and #2 (the person behind me) would get into Court. We then had to quickly process through the secondary metal detectors, and be seated. By the time we entered the Court, lawyers were already moving for bar admissions.

I took a seat in the last row of the bar section, close to where the Justices' guests sit.

Readers of this post will likely identify several problems with this process. In the next post in this series, I will highlight what those problems were, and offer some suggestions to improve the process.


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