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When homeless lawyer Thomas Van Orden decided to fight the display of the Ten Commandments on the Texas Capitol grounds in Van Orden v. Perry, he didn’t know that some 75 other lawyers who follow the U.S. Supreme Court would have their sleep disturbed. Most stories focus on legal issues. My story is that of the high court’s audience � the attorneys who show up not because we have to, but because we’re fascinated. On the day of oral argument, we get up early to stand in line. Often we freeze outside the Court waiting for the doors to open at 9 a.m. We are motivated, energetic Court-watchers. And schemers too. Overheard in line: Once inside, save time by stashing BlackBerries and cell phones in the lockers by the women’s bathroom. Make sure to have your quarters ready. Next, spin on over to the lawyers’ lounge to await the start of argument. By not using the lockers by the men’s room, you save seven minutes. (We’re lawyers. Sometimes we can’t help trying to game the system.) I have been attending these arguments for 11 years, and I’ve seen more than 20 oral arguments. I loved constitutional law in law school. But how many of us how can be Laurence Tribe or Theodore Olson? When I got to Washington, D.C., I realized that, instead of simply reading about the cases decided by the Warren and Burger courts, I could now attend the cases of the Rehnquist Court. One hundred dollars bought you a ringside seat. Well, $100, three years of practicing law, and two members of the Supreme Court Bar to sponsor your membership. One of them presents you to the Court. I still remember what it felt like 10 years ago. Howard Glickstein, then dean of Touro Law Center, walked to the podium: “Mr. Chief Justice, and may it please the Court . . .” he began. He listed our names and attested to our suitability. Chief Justice William Rehnquist then turned toward us and welcomed us to the Supreme Court Bar. I never met him. I simply joined the ranks of thousands of attorneys over the years who silently thanked him. Indeed, for most of us, that’s about as close to having the chief justice speak to us as we are likely to get. But not for everybody. Recently, I was talking to a man waiting on line to get into the Court who asked me, “Have you ever argued here?” It turned out he had argued two cases before the Court. WAITING FOR ‘BUSH V. GORE’ When Bush v. Gore was argued on Dec. 11, 2000, I got to really test my desire to hear an oral argument in person. Each time I telephoned the Court to ask for an estimate about when the line would form for the lawyers, the recommended time to show up was an hour earlier. The number of seats reserved for Supreme Court Bar members is pretty limited, and the interest level was, I guess, at an all-time high. So there I was � up at 3:30 a.m. In line by 4:30 a.m. The weather was brutal. That’s OK. I was ready. Heavy boots, double socks, thermal underwear . . . and of course, suit, tie, and overcoat. I overheard two men talking. “How’d you get here?” “My wife took me.” “At 4:30 in the morning? My wife said I was a nut, rolled over, and went back to sleep” “Nah. My wife wanted to drive me here.” “Where do you get one of those type wives?” The next four and a half hours in line race by. I’m not kidding. We discuss the dynamics of the case. We debate the positions the justices will take. All of us have read the briefs, the news accounts, and now we’re here � ready to witness the making of legal history. Thanks to my early arrival, I got inside. Even, better, I was seated 10 feet away from Laurence Tribe, Harvard Law professor and constitutional scholar extraordinaire, arguing Al Gore’s side. And what can I see that no journalist covers? Tribe has an open manila folder, with minuscule handwriting covering both inside covers of the folder, and nothing else. No copies of briefs, no law journal articles. His universe is his own notes, presumably intelligible only to him and to be used only by him. He has pruned thousands of pages of material to the bare essentials that he needs to know. All of a sudden, I’m hearing the voice of the Ghost of Law School Past: “This open-book exam will be limited to all the notes you can write on one eight-and-a-half-inch piece of paper.” Tribe is apparently using the same technique as moot court 1960s-era petitioners. He’s of a piece � bow tie, short hair, utterly self-reliant, self-contained, and as low-tech as you can get. Contrast Theodore Olson, the future President George W. Bush’s attorney, later to be solicitor general. Olson is working with a whole team. Midargument, actually even midthought, he’s being handed papers, questions anticipated by his team. He’s part of a dynamic argument machine, responding with each challenge from the bench. His notes are in a typeface clearly more visible than the small, ink handwriting of Tribe. ANALYZING ATTENDEES Since I started standing in line to hear these Supreme Court oral arguments regularly, I’ve pondered why. Is it to feel part of history? Is it to sit in the big top, watching the Greatest Show on Earth? (We lawyers love our metaphors to clarify thought.) Or are the battling lawyers like tennis players at Wimbledon, fierce competitors volleying logic and precedent at each other, with nine referees to decide the match? Except these referees put the ball back in play themselves. And they pack a mean serve. Is it because passionate viewpoints so often collide when cases reach the Supreme Court? Terrific lawyering is often the result of such collisions. (But not always. In Bush v. Gore, one lawyer called Justice John Paul Stevens “Justice Brennan” and then Justice David Souter “Justice Breyer.” A few moments later, Justice Antonin Scalia erupted, “I’m Scalia.”) Some of us attendees have a direct connection to the case. Some are relatives of a principal who rushed through Supreme Court Bar applications just to be there that day. Many of us simply love the law. Some I now know by sight and in this setting only. HISTORY IN THE OVERFLOW ROOM On March 2, the day of the Ten Commandments argument, I counted about 75 suits in the overflow room for lawyers in which I finally found myself. We’re still mostly an old boys’ club, dressed in suits of gray and black, and some seven women, also in suits, but with a slight flash of colorful fabric. Maybe we’re a little jealous of those litigating the case. Only nine justices on a bench get to make the actual decisions. But we can play along with them. At any one time you can overhear multiple fragments of conversation swirling around, like these samples from the Ten Commandments cases. “I think you will see O’Connor positioning herself to be conciliatory. . . .” “Did you notice how Breyer . . .?” “Scalia appears to be arguing through the questions posed at the attorney making the point to Breyer that he is ridiculous. . . .” (This is what constitutional scholar and New York University law professor Burt Neuborne calls using the oral argument as a “mailbox drop” to send a message to another justice.) In the Ten Commandments cases, I wanted very badly to make it into the courtroom. I didn’t. But not to worry. The lawyers’ overflow room pipes in the sound. By now, we all know how to distinguish the reedy oboelike timbre of Justice Stephen Breyer from the higher-register clarinetlike qualities of Justice Scalia. Honestly, I think some of us could be ear, nose, and throat diagnosticians. We know our judicial nostrils. Sounds like Scalia has allergies acting up. What’s with Breyer? A cold this week? And don’t feel too sorry for observers in the overflow room � we get to comment as the argument goes on. No such luxury for Supreme Court reporters. They’re stuck with notes and deadline reporting pressures to summarize the oral argument without benefit of a play-by-play discussion in real time. We do miss some details, however. After one attorney finished oral argument in the second of the Ten Commandments cases ( McCreary County v. ACLU of Kentucky), Justice Stevens, acting for the missing Chief Justice Rehnquist, complimented the man, saying that he proved one need not be at the lectern to do a great job. Only then did I realize (admittedly by circumstantial evidence) that the man was in a wheelchair. Or when, in Van Orden, Justice Ruth Bader Ginsburg pointed to the frieze above and to her left, I couldn’t see her do so. (That part of the frieze depicts Menes, Solon, Hammurabi, and Moses. Mosaic law is represented by the prophet holding the Ten Commandments.) Does that frieze mix church and state? she asked. ( Nota bene: These are my words. The Court would not be so colloquial.) The legal argument in Van Orden v. Perry is better expressed by quoting from the question presented in the case: “Does [the] Ten Commandments monument located on government property among other historic monuments between [the] Texas state capitol and [the] Texas Supreme Court violate [the] First Amendment’s establishment clause?” (It has always amazed me that the Court has a one-sentence rule limiting the summary of the case for the official record, so that as long as you keep on adding parenthetical clauses, and don’t stray into ungrammatical territory, and figure out how to tack on new, relevant information, and avoid, for the life of you, that dreaded punctuation mark, the period, in such a way that � I think you get the idea.) FRIENDS IN MARBLE After the Ten Commandments cases were concluded, a federal patent adjudicator, who was using a day off to study the evolving nature of the Court, and I challenged our predictive powers by attempting to guess which way the Court might lean. (I predict the Court will rule for Texas but against Kentucky.) My new friend, the patent adjudicator, and I stopped by the Supreme Court’s press office to get copies of the decisions recently handed down. Briefly, we exchanged life stories and then headed for the Metro. As we left, I took the opportunity to glance one last time at the engraving on the outside of the Supreme Court building. On a crystalline March day, the marble engraving of “Equal Justice Under Law” shone as beautifully as it ever has. Just above those famous words stand a row of men draped in the clothes of antiquity. We can see them surveying the scene below. Historians of the Court have determined that Cass Gilbert, the original architect of the Supreme Court, modeled those figures after his own friends. What were these marble men thinking? Perhaps they have been watching us all these years � standing guard so that differing viewpoints, no matter how passionately debated, do indeed get equal justice before this Court. David Lehrman is a retired attorney in Washington, D.C.

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