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SCOTUS-Watching: First in Line, Last to Know

October 10th, 2014 by dk

If you want to watch the United States Supreme Court in action, the first thing you have to do is set your alarm. Only a few dozen seats inside go the general public.

The line usually begins forming around 3 or 4 in the morning. To be sure you’ll get a seat, the best rule is to “get in line before the subway begins running, which is 5 a.m.,” according to Ryan Malphurs, who has witnessed over 100 oral arguments and written a book on what he has observed.

When I arrived on Monday at 4:55 a.m., the line on First Street NE wasn’t a line at all. It was more of a huddle — a gaggle of a half dozen strangers sharing stories and body heat — standing against boredom and a starry chill on the cement sidewalk. “This is nothing,” insisted Graham Blackman-Harris. “We used to line up on the marble steps, and man, it was cold!”

Blackman-Harris has been standing in this line the first Monday of every October since 1991. He and Malphurs became acquainted in this line over the years, building a friendship and collaboration over the most arcane details of court arguments.

Ahead of them in line were only the arresting officer in the case to be argued that morning and two others from the Surrey County Sheriff’s department in North Carolina. They got in line just before 4 to be certain they could see this case to its ultimate conclusion.

Behind me was a genuine Supreme Court groupie and three undergraduates from nearby American University. They wondered aloud whether this term might include any sort of ruling about same sex marriage. “So far, no,” was the informed consensus.

Little did we know.

“Do you think they’ll allow cameras in the courtroom during our lifetimes?” Each of us silently calculated our own life expectancy before admitting that there’s no way to know. Until that day, this will be the only way to witness it.

A little after 7 a.m., with the line now extended to the end of the block, a beefy man with a badge and an earpiece told us what would happen next. We were given numbered cards for our next line-standing appointment at 9 a.m. inside.

We were then free to tour the hallway exhibits or grab a cup of coffee in the cafeteria. Around 9:15, we were instructed to store all electronic devices in lockers before passing through the metal detectors. Pen and paper only are allowed in the courtroom. By 9:30, we were separated from the outside world and seated in the courtroom.

We didn’t learn until later that day what the rest of the world was hearing right then. “I find it incredibly ironic,” Malphurs told me the next day, “that we were first in line and last to know.”

The first tweet came at 9:42 that the justices had denied “writ of certiorari,” letting stand five appellate court rulings that favored same-sex marriage. Their inaction effectively cleared the way for gays and lesbians to marry in 30 states, for the first time representing the majority of the country.

The most important thing the justices did that morning was what they refused to do.

But that decision was not mentioned in the courtroom. Instead, we were hearing a case focused on whether North Carolina’s 1955 motor vehicle law requiring that every automobile have a functioning “stop lamp” (singular) invalidated a routine traffic stop and subsequent vehicle search.

Except for a non-functioning second brake light (which the state law does not mention or require), the driver had done nothing wrong. Did the two ounces of cocaine found during the subsequent search amount to an unlawful seizure, violating his 4th Amendment rights?

We, that 4 a.m. gaggle, were close enough to watch these nine robed trees of jurisprudence swaying through these arguments, but the forest of their cultural impact could not be seen from where we sat. In that forest, the timber of sexual discrimination was falling, and we couldn’t hear it. We were hearing instead about the evidentiary rule forbidding tainted fruit from a poisoned tree.


Don Kahle ( writes a column each Friday for The Register-Guard and blogs

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