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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 [...]

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