WASHINGTON – Inside the U.S. Supreme Court building on March 26 and 27, the issue of standing loomed large in the historic arguments over same-sex marriage. Since then, another, far more literal, standing issue has been a hot topic among high court advocates.
It involves the wait in line for seats inside the court for high-profile arguments. Veteran court litigators were mortified to see paid line-sitters (or standers) dominating the queue reserved for members of the Supreme Court bar. That line leads to exclusive access to seating at the court—directly behind the lawyers arguing—or overflow seats in the nearby lawyers’ lounge. A few hours before the historic arguments began, the real lawyers slipped into the spaces held by the line-sitters.
Even more upsetting to some, though, was that on March 27, for the second same-sex marriage argument, some of those late-arriving lawyers shoehorned other lawyers into line with them, bumping back others who had waited for hours.
"You can’t even try that on the checkout line at Safeway, unless you’re with your spouse—no matter how that is defined—and your spouse says, ‘We forgot the oatmeal,’ and goes and gets it. Then the spouse can come back into line," said Alan Morrison, associate dean of George Washington University Law School.
Morrison was able to get in on March 26, for the California Proposition 8 case, but not for the more crowded arguments the next day over the Defense of Marriage Act.
"What’s happening in the lines outside the court in these big cases is a scandalous display of bad manners," said Dale Carpenter, a University of Minnesota Law School professor who was relegated to the overflow room on March 27 by the paying lawyers and their line-cutting friends.
On The Volokh Conspiracy blog March 30, Carpenter said, "It was the real standing problem in the marriage cases."
The court takes a hands-off policy about the bar line until the lawyers in line enter the building, by which time the line-sitters are long gone. Asked last week about the controversy, court spokeswoman Kathy Arberg said, "The bar line, like the public line, is self-policed by its members until the morning of an argument. Unlike the public line, which is recognized outside on an argument morning when numbered admission cards are distributed by the court police, the bar line isn’t officially recognized until it comes inside and checks in at the bar desk on the ground floor. At that time, members are given cards that admit them to the courtroom and on them it says they are nontransferable."
Some lawyers contacted about the situation said they were discussing petitioning the court’s clerk or marshal to seek a review of the policy—or lack of policy—that allowed the unruly situation to happen.
Most lawyers declined to comment for the record, for fear of angering the court. They hastened to add that they have no objection or no opinion about the thriving market for line-sitters on the lines for the general public. Stories abounded about prominent nonlawyers like Hollywood director and actor Rob Reiner paying as much as $6,000 to line-sitting companies for prime seats in the public section.
But the line for members of the Supreme Court bar, several said, is different—and should be populated only by members, not by paid interlopers.
"If you have that special privilege, you ought to have to exercise it yourself, not have a bidding war," said Morrison, a longtime advocate before the court. "It feels completely wrong to have line-sitters in the bar line."
Morrison recalled that for the landmark case United States v. Nixon in 1974, the court held a lottery for members of the Supreme Court bar seeking to attend.
"That’s a better way," he said. "It seems unseemly for anyone other than members to be on that line."
For $200 and the sponsorship of two existing members, lawyers in good standing for more than three years can become members of the Supreme Court bar. It is a loose organization that only meets to commemorate deceased justices, but it conveys a certain cachet —and usually means a safe seat inside the lawyers’ section during arguments.
In fact, Carpenter said, he joined the bar solely for the purpose of getting into the same-sex marriage arguments. Carpenter is the author of "Flagrant Conduct," the 2012 book on Lawrence v. Texas, the landmark 2003 gay rights case.
Carpenter arrived at 2:15 a.m. on March 27, anticipating a longer line for the DOMA case than for Prop 8 the day before. He was the 45th person in line, but when the line-sitters’ clients started arriving at 7 a.m., they invited friends to move ahead in the line, and some even cut in without making contact with their line-sitters.
"We confronted some of the line-cutters, who feigned ignorance or said they’d paid or claimed they’d actually been standing in line all night," Carpenter wrote on Volokh Conspiracy. "Of course, we’d just seen them arrive in a fleet of eco-friendly Priuses, alternately sipping their mocha pepperaminto skim milk lattes and chatting excitedly about egalitarianism’s next frontier."
@|Tony Mauro covers the U.S. Supreme Court for ALM, the Law Journal’s parent. He can be contacted at email@example.com.