The Real Standing Problem in the Marriage Cases

Some commentators mistakenly think a federalism-based approach to the DOMA case will cause a flood of litigation and generate massive legal uncertainty, but that’s not the real chaotic threat at the Court.  Orin notes the practice of paying people to stand in line for you to get into the Supreme Court for oral argument in important and highly publicized cases.  I can speak to this phenomenon first-hand. I attended the oral argument in the marriage cases on both days and witnessed it up close, along with even more questionable queueing practices.  Forget about federal court jurisdiction.  What’s happening in the lines outside the Court in these big cases is a scandalous display of bad manners.  It was the real standing problem in the marriage cases.

There are actually two lines to get into the chamber, which has very limited seating capacity.  One is for the general public, and in high-profile cases it’s quite long.  The other is for lawyers who become members of the Supreme Court bar.  Bar members enjoy a limited number of reserved seats at the front of the audience, right behind the lawyers for the parties in the case.  The public sits in the back, although given the small size of the courtroom their seats are very good — if they show up early enough to snatch a place. 

I joined the Supreme Court bar ($200 one-time fee) in order to get into the marriage arguments. I knew the lines would be long, so I arrived Tuesday morning at about 3:15 a.m., thinking that would be good enough to get me in.  I was about 57th in line at that point for about 100 seats in the bar section.  In front of me were mostly paid line-standers who had been waiting in the 30-degree temperatures all night.  I talked with quite a few of them.  None were members of the bar.  Almost all were impoverished and black.  Many of them slept on the ground, in cold and wet conditions, for several nights.

As daylight approached, a lot of equality advocates arrived to take their premium places in line.  These “clients,” as the line-standers called them, paid about $50 an hour to line-standing-service middlemen organized as businesses (I don’t know what the actual line-standers earn per hour).  For the Prop 8 case,  it cost as much as $6,000 to get to the front of the line and guarantee a seat in the courtroom.  Neither the Supreme Court nor any law-enforcement authorities prohibit this practice.

I don’t categorically object to line-placement capitalism, especially for private functions like buying tickets to a rock concert.  It’s an economic exchange in which the highest bidders get what they want and others sell their services and earn money they wouldn’t otherwise get.  It does seem odd to hold what’s effectively a private-market auction for seats at a public hearing of the country’s highest court.  Many of the buyers who participated in this particular market, given what I know of their other political preferences, would be hard put to defend this system in a public forum. 

They started letting us into the Court at about 7:30 for the Prop 8 argument on Tuesday.  I got into the main room, third row from the front, not more than 50 feet from the Justices.  Getting there early — and being able to stand in a separate bar-members line — had paid off.

But what happened the next day for the DOMA argument was appalling.  I arrived at 2:15 a.m. when the temperature was a balmy 40 degrees and was headed down.  I was 46th in line, again with a group consisting almost entirely of paid line-standers in front of me.  There were very few bar members personally waiting in line at that time.  The Court had space for fewer bar members that day in order to make room for an extra table for counsel arguing the jurisdictional issues.  But even with more limited seating, #46 was still sure to get in.

As 7 a.m. approached and the lawyers arrived to take their pre-paid places in line, something else happened.  They started inviting their friends to join them at the front of the line, pushing back people who had waited all night to get in.  The lawyer-clients of several of the line-standers near me never arrived to relieve their assigned line-standers, no doubt because they cut in line further up than what they had paid for.  Pretty soon, I was #55 and then #65 and then I lost count. 

I wasn’t the only one dismayed by this development.  We confronted some of the line-cutters, who feigned ignorance or said they’d paid or claimed they’d actually been standing in line all night.  Of course, we’d just seen them arrive in a fleet of eco-friendly Priuses, alternately sipping their mocha pepperaminto skim milk lattes and chatting excitedly about egalitarianism’s next frontier.  The same line-cutting behavior was infecting the public queue.  The only available remedy would have been self-help.

I didn’t get into the courtroom for the DOMA argument.  Instead, I was shuttled with dozens of other exhausted people into an overflow room where we listened to the proceedings.  There was an advantage to this alternative room:  we were allowed to react more visibly and audibly to the arguments.  We weren’t expected to sit there impassively like Justices at a State of the Union speech.  Considering that I sat near the likes of Walter Dellinger and Paul Smith, my initial frustration subsided, though I can’t say the same for all of the other people who lost their seats in the courtroom. 

I’m not sure what the alternative to this state-of-nature queueing at the Court would be.  Social pressure and shame obviously aren’t enough to enforce good manners and common decency.  But as a colleague of mine observed, if Walmart can figure out how to prevent stampedes on Black Friday, there must be a better way to decide who gets past the pediment that says “Equal Justice Under Law.”