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Remember that second-grade teacher we all had and her most terrifying of threats: “I may have to change some seating in the classroom”? Well, it’s come to pass for our Supreme Court justices, as the arrival of Samuel Alito Jr. triggered new seating arrangements at oral argument on Feb. 21. This was a big deal, sort of. Unlike our second-grade selves, seven of the justices had been sitting in the same seats for more than 10 years. Same next-seat neighbors, same angle on the pontificating lawyers, same few feet of the bench. From left to right, they now are sitting: Stephen Breyer, Clarence Thomas, Anthony Kennedy, John Paul Stevens, John Roberts Jr., Antonin Scalia, David Souter, Ruth Bader Ginsburg, and Samuel Alito Jr. One must assume the new arrangement won’t inspire anyone to switch sides jurisprudentially. But as with those second-graders, there may be some new friendships arising. Plus we all know that the kids in the back of the class sometimes cut up a bit more. I went to the Supreme Court to see for myself. First day, Tuesday, Feb. 21. Being there at 7:10 a.m. got me as far as the overflow room. Second day, success: I’m in! Ginsburg sported a new white collar, like some 18th-century fashion statement. Scalia, now sitting a little to the right of the old gold clock on the wall, was, as usual, just a sort of homunculus barely visible above his pitched-back chair. Several of the justices read the decisions they had authored. Kennedy, it turns out, is a superb reader. He has that talent for sounding as if he is composing the text even as he is speaking it. BODY CAVITIES Right off the bat, this was a “hot bench” with a vigor I have not seen for years. The case of Samson v. California, argued on Wednesday, Feb. 22, involved a parolee’s protection from warrantless searches by police. Scalia was aggressively pursuing the fact that it was a privilege to be paroled. At one point, he and several other justices (the men) seemed inordinately interested in how many and varied the body-cavity searches might be of inmates in jail. Ginsburg, smiling at the questions, phrased her own cavity-search query ever so much more delicately. Meanwhile, the gentlemanly Stevens continued his practice of prefacing a question with “May I ask a question?” The defendant’s lawyer argued that his client had just been walking down the street minding his own business, female friend by his side, wheeling her baby in a carriage, when the police officer, who knew he was a parolee, conducted a search. Unfortunately for the defendant, the search turned up methamphetamine on his person. Kennedy also was very engaged, on the edge of his chair. It almost seemed as if Roberts held back for a while on his own questions, letting the rest of the Court take the lead in the interrogation. Souter practiced his own form of ventriloquism, lips barely moving as his questioning proceeded. At 10:35 a.m., still no question from Alito. I felt like some member of the Audubon Society awaiting the impending flight of a rare species in a legal aviary. Roberts began pursuing question after question, perhaps four or five in succession, almost as if he were conducting a cross-examination. Finally, at 11:10 a.m., the bespectacled rara avis called out. In a voice that sounds more of New York than New Jersey, Alito posed a question on the Fourth Amendment. Scalia immediately followed up, noting, as he did, that it was Alito he was following up. NOT FOR THE SQUEAMISH In Holmes v. South Carolina, also argued on Feb. 22, the intensity of the justices’ questions seemed somewhat diminished. The issue was the constitutionality of a South Carolina statute that restricted the ability of a criminal defendant to introduce evidence of a third party’s guilt. I decided to read the South Carolina case containing some of the facts about this crime. Warning: It is not for the faint of heart. Be sitting down before flipping open the Supreme Court of South Carolina’s opinion (464 S.E.2d 334). The bare facts: Mary Stewart, 86, was brutally beaten, sodomized, and robbed on Dec. 31, 1989. She died four months later. At trial, the state called Paul Burton, incarcerated in York County jail with Bobby Lee Holmes. The two men had been watching a pornographic movie (yes, while in prison) that featured sodomy when Holmes stated, “That’s the way I done the old bitch . . . and she liked it, too.” How shall I put this? The touchy-feely “Kumbayah” vibes were clearly not emanating from Scalia, et al., on Holmes’ important appellate issues. Breyer actually pointed out that this Court couldn’t be looking at all the nation’s facts. (A lone dissenter in the five-judge South Carolina decision argued that a new trial was mandated to let the defendant introduce his evidence about third-party guilt.) Meanwhile, Alito assumed his apparently characteristic Rodin position, left fist under his chin, posed in thoughtful listening. Actually, for the first time, he even looked directly at Ginsburg as she asked a question. JUDICIAL RELATIONS Sometimes you look at the nine black high-backed chairs and you sort of imagine the New York City skyline. No two chairs are at the same height; Roberts is maybe the Empire State Building, while Scalia is clearly the Chrysler Building, and Thomas may be down at the 42nd Street subway entrance. (I can’t decide if those nine chairs also resemble the bottom teeth of some grinning jack-o’-lantern, but such a comparison seems beneath the dignity of the Court.) Thomas and Breyer clearly have a warm and chummy relationship. They were even chatting during the State of the Union address this year. And I have seen them in the past carry on their own fairly audible conversation as a case proceeded. (In all fairness, I should mention that Scalia and Souter did the same on Feb. 22.) Breyer also looks over protectively at Thomas when the latter looks sleepy. Breyer continues his trademark hypothetical questions, a study in Jack Benny-like eye rolls, hand on cheek like the comic master of long ago. Meanwhile, advocates are probably figuring, there goes 10 percent of my argument time. Thomas seems to regard oral advocacy as some sort of dog-and-pony show, since the arguments are all set out in submitted writing, anyway. His one question in this new Court did feature extended consultation with Breyer before Thomas spoke. (Like E.F. Hutton, when Thomas speaks, everybody listens.) One surprise for me: I thought Souter and Thomas, who now sit near the press corps, would be inhibited by the reporters scribbling away. But they’re not. As for Ginsburg, now, still separated by Souter, Scalia sits on her left. But they have escaped the glare and direct observation of the reporters. We know that Ginsburg and Scalia and their spouses ring in the New Year together. We know they both adore opera. But did you know that the conservative curmudgeon also makes her laugh? Come on, Mr. Chief Justice. You couldn’t make one exception and let them sit next to each other? They’ve been good. And Ginsburg might appreciate a friendly face nearby. After all, the former Justice Sandra Day O’Connor wrote that it was lonely when she was the sole woman among eight men. Does Ginsburg miss having another woman on the Court? Scalia used to scold O’Connor in his opinions, but he doesn’t hound Ginsburg in print. I suspect he figures she is hopeless as an originalist, so he just enjoys her. OLD AND NEW Some of us will miss the old Court. Instead of O’Connor’s unique Arizona twang, we are adjusting to the timbres of the new chief justice and his occasional Cambridge accent. Perhaps underreported last year was the wrenching sight of the late Chief Justice William Rehnquist coming into work, throat kerchief hiding his recent tracheotomy. Sometimes he would use wit to make a sharp legal distinction. Our laughter was nervous, even pained. Now, one sees that chair occupied by a vital man 30 years younger. We see a chief at the height of his legal powers. Virtually no athlete can be the man he was at age 25. But no lawyer at 25 can match the legal acumen that Roberts brings at 50. I eyed the chief justice the other day as he swept into the Supreme Court’s cafeteria. NBC News correspondent Pete Williams called out to him and was recognized. I couldn’t help but be struck by the unpretentiousness of the new chief. One by one, four young white men joined him at a table by the rear. His law clerks, I thought. If so, then they’re four young men on the red carpet to legal superstardom. Law firms will vie to sign up them and their cachet. They will be forever members of that exclusive club of lawyers privy to the inner workings of the Supreme Court. And, of course, they all know that many of the justices were once law clerks themselves. Inside the Supreme Court cafeteria, it was quiet and serene. Outside the building, members of the public were demonstrating over Roe v. Wade (1973). Red tape covered the mouths of the anti- Roe protesters, signifying the inability of the unborn to speak. One counterdemonstrator had red paint dripping from her jersey dress, a coat hanger stuck in the fabric, lest one forget the days of back-alley abortions. I counted 15 police officers in full threat-alert mode behind the barricades. In such riveting times, a couple of questions arise. Will the Supreme Court only present a new face? Or will the new seating arrangement presage a new way of interacting among the justices? For now, for this first term, we are getting hints but no definitive answers. The easy part: Make sure you’re sitting in the right chair, and let the new Court begin.
David Lehrman is a member of the U.S. Supreme Court bar. He also serves as vice chairman of the Foggy Bottom Advisory Neighborhood Commission.

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