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The case of Tennessee v. Lane, No. 02-1667, originated with a handicapped criminal defendant who had to crawl up the steps to reach a second-floor courtroom in Polk County, Tenn. As it evolved, the case became a vehicle for the disabilities rights community to call attention to the treatment of the disabled at all courts — including the Supreme Court itself. Outside the Court before the arguments began on Jan. 13, seven people — some who use wheelchairs and some who don’t — began crawling up the steps of the Supreme Court, just as George Lane had done in Tennessee. “We wanted to show our solidarity, to do what he was forced to do,” says Jim Ward, president of ADA Watch and the National Coalition for Disability Rights, who was one of the seven. The group began by crawling up the small number of marble steps that marks the beginning of the Court plaza just beyond the First Street sidewalk. It was at that point that Ward says the group expected to be arrested, having crossed into official Supreme Court territory, where federal law says it is illegal to “parade, stand, or move in processions or assemblages.” But, surprisingly, the group was allowed to proceed toward the Court, crossing its entire marble plaza. Only when the protesters began to climb the steep and long set of stairs closest to the Court itself were they stopped by Court police. “They told us we needed to turn around or we would be arrested,” says Ward. “They were polite but stern. I sensed nobody really wanted to arrest us.” The group turned around and did not provoke a confrontation. “We accomplished what we set out to do,” says Ward. Inside the Court, another milestone for those with disabilities was achieved. Elise Roy, a deaf lawyer who wanted to observe the oral argument in person, was allowed to bring into the courtroom a stenographer who was able to transcribe the argument in real time for her to read on a laptop computer. “I was extremely happy to see the highest court recognize the importance of accommodating its entire audience, not just the attorneys actively involved,” says Roy, a staff attorney with the Washington Lawyers’ Committee for Civil Rights and Urban Affairs. “Imagine sitting there, having the great privilege of attending a Supreme Court hearing, but not having the ability to hear or understand what was being said.” John Stanton, a deaf lawyer with Howrey Simon Arnold & White, says the access given Roy marked a “historic moment. I’m very happy that the Court finally did the right thing.” Stanton says he was denied similar use of a stenographer several times in recent years. “Given the Court’s power to affect the lives of people with disabilities, I always thought it was absurd that the Court remained inaccessible for deaf and hearing impaired persons.” Supreme Court officials said they were unaware that past requests had been denied and suggested that what happened with Roy did not reflect a change in policy. The Court has made numerous other accommodations before for spectators with disabilities, and routinely makes available equipment that amplifies voices for spectators with hearing impairment. Footnote: While Roy’s access may be a first for a spectator at the Court, another deaf lawyer used a similar arrangement to actually argue a case in 1982. Michael Chatoff argued in Hendrick Hudson District Board of Education v. Rowley with the aid of a more primitive computer and a colleague who tugged on his sleeve when a justice began to speak. POLICE IN DISPUTE In 2002, Supreme Court police officer Blake Taylor was given an award by Chief Justice William Rehnquist for the part he played in developing a plan for dealing with terrorist threats at the Court. Last August, Taylor was fired, creating rifts within the Court’s 140-member police department. “There is a caste system at the Court,” says Taylor, a black officer who says he was fired after making a complaint against superiors. “Minorities keep getting walked out the door, and we have no protection, no real grievance procedure.” Taylor, who worked at the Court for nine years, says four black officers have left the force in the last 18 months and several others have been reprimanded or suspended. “Morale is at an all-time low,” in part because of Taylor’s firing, says a current Court police officer who requested anonymity. “There are kings and kingdoms here, and if they don’t like you, you are out.” Another current officer, also speaking on the condition his name not be used, says, “Punishments are not given out fairly.” Court officials deny any arbitrary treatment and note that turnover in the department is routine. Some officers have also been lured away by new job opportunities elsewhere, including post-9/11 positions as air marshals. Fully half of the Court police officers who have been promoted recently to sergeant or lieutenant — five out of 10 — have been minorities, Court officials note. Of Taylor’s departure in particular, Supreme Court officials are said to be confident it was handled properly, but they decline comment. Taylor was dismissed, according to a termination letter signed by Marshal Pamela Talkin, because of numerous instances of misconduct, including misuse of a Court vehicle and cellular phone. “These matters relate directly to your ability to perform as a police officer and therefore undermine the confidence the Supreme Court must have in its police officers,” wrote Talkin. A copy of her letter was provided by Taylor, who claims the allegations of misconduct are untrue and further that he was not given a chance to rebut them before being terminated. The Court’s police department has long been a setting for troubled labor relations, and Court officials say numerous improvements have been made. But several officers at the Court, both black and white, say the Taylor firing and other episodes show that the Court has a long way to go. Several justices have begun to take notice of the division among police, several officers also said. Many justices are acquainted with the officers who provide their security. Justice Clarence Thomas in particular has taken interest in the treatment of black officers, some say. Taylor also asserts that the grievance procedure available to Court employees is minimal and does not befit an institution dedicated to protection of due process. “It says ‘Equal Justice Under Law’ in the front of the building, but that is not what employees get,” says Taylor. Court workers are employed “at will,” and grievances short of termination are reviewed by internal panels that include top Court officers as well as lower-ranked employees. They have no recourse to the Merit Systems Protection Board or any other outside agency or arbitration process. Employees who are fired “for cause” have no avenue to challenge dismissal. Other federal workplaces have similar grievance systems. But many, including lower federal courts, provide more extensive procedures. Minority officers also point to another racially tinged episode last summer that allegedly occurred in the basement paint shop of the Court. A white worker left a hangman’s noose and a depiction of General Custer in plain view of a temporary employee who is part Hispanic and part Native American. Both painters, though assigned to the Court, were employees of the Architect of the Capitol, whose workforce is protected by more extensive grievance procedures than Court employees. When the minority employee complained about the incident, claiming he was a victim of a hostile work environment and racial harassment, he said Court officials did nothing. But through an arbitration procedure available to workers for the Architect, the minority painter won a cash settlement last month that requires all parties not to talk about the incident. The minority painter resigned soon after the episode. The white painter still works at the Court, according to those knowledgeable about the incident. Officials at the Architect of the Capitol declined comment. Court officials also had no comment because the alleged incident did not involve Court employees. GINSBURG’S REVENGE The last time veteran advocate Carter Phillips of Sidley Austin Brown & Wood appeared before the Court in October, he made the mysteriously common blunder of addressing Justice Ruth Bader Ginsburg as “Justice O’Connor.” Phillips appeared again before the justices Jan. 14 in the case of Engine Manufacturers Association, et al. v. South Coast Air Quality Management District, et al., No. 02-1343. One of the Supreme Court Bar’s top advocates, Phillips got all their names straight. This time the slip of the tongue came from the bench. Justice Ginsburg addressed Phillips as “Mr. Carter” — not once but twice, during Phillips’ main argument, then again during his rebuttal. Unless Ginsburg has mastered the perfect poker face, both instances seemed to be genuinely unplanned. Both times, Phillips smiled broadly but said nothing, except that in his responses to her, he pointedly addressed her correctly as Justice Ginsburg. Afterward, Phillips laughed about the episode as fair turnabout. He said that throughout his professional life people have called him Mr. Carter. “But until today, it never happened in a courtroom.” “Courtside” appears monthly in Legal Times, an affiliate of law.com and American Lawyer Media. Tony Mauro’s e-mail address is [email protected]

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