The Volokh Conspiracy

Today, in Arlington v. FCC, the Supreme Court held 6-3 that courts should confer Chevron deference to agency interpretations of ambiguous statutory provisions concerning the scope of agency jurisdiction.  Justice Scalia wrote for the majority.  Justice Breyer filed an opinion concurring in part and concurring in the judgment.  The Chief Justice dissented, joined by Justices Kennedy and Alito.

I participated in an amicus brief in this case, largely based on an article I co-authored with Nathan Sales. Alas, we were on the losing side.  My prior posts on this case are here and here, and earlier posts on the issue are here and here.

I hope to have more to say about the decision later today.

Sirius Satellite Radio has posted the audio of my recentdiscussion of the Supreme Court with George State University Professor Eric Segall on Stand Up! With Pete Dominick. The audio is available here.

Much of the discussion focuses on general issues of constitutional theory and the extent to which the Supreme Court is or is not politicized, which I recently wrote about in this article. But towards the end, we also talked about the gay marriage cases currently before the Court, including my view that laws banning same-sex marriage are examples of unconstitutional sex discrimination.

This Thursday between 8 AM 9 AM eastern time, I will be appearing on Stand Up! With Pete Dominick, on XM Sirius satellite radio to discuss the major cases of the current Supreme Court term. I will be joined by Professor Eric Segall of Georgia State University. I am not sure exactly which cases we will discuss. But it’s probably a safe bet that the gay marriage cases will be among them, along with Fisher v. University of Texas, the affirmative action case. Since the show lasts a whole hour, we should be able to cover a significant amount of ground.

That’s very unusual. A bit of background: If a litigant loses below, and petitions for certiorari (i.e., Supreme Court review), he is labeled the “petitioner,” and the winner the “respondent.” When respondents see a petition filed, they sometimes file a brief in opposition (called a BIO), but often waive their right to respond. If the respondents waive that right, and a Justice thinks there might be something to the petition, that Justice can “call for a response” (CFR), and the respondents will almost always respond. The Court never grants review without having either gotten a response at the outset, or having CFR’d, because it’s generally helpful for the Court to hear both sides’ views before granting.

But in Burnside v. Walters, which the Court granted today, the Court CFR’d — technically, “Requested” a “Response” — but did not get a response. The Court then considered just the petition, together with an amicus curiae brief from the American Friends Service Committee supporting the petition (now there are some Friends of the Court for you, though, as it happens, not in Pennsylvania), and agreed to hear the case.

What happened to the respondents? Well, for starters, they apparently never got a lawyer. This is probably because of the procedural posture of the case, which relates to the question presented by the case: Under the federal “in forma pauperis” statute (the one that allows people who can’t afford filing fees to have those fees waived), as amended in 1995, federal courts act as gatekeepers for in forma pauperis claims, and dismiss them without the other side even being served if they fail to state a legally sufficient claim. This is what happened to plaintiff-petitioner’s claim against the defendant police officers (and the local YMCA, where he lived). But then the district court also read the statute as barring the plaintiff from amending his complaint and refiling, and the Sixth Circuit (unlike most other circuits to consider the claim) agreed.

Because of this, defendants were never served below — since the federal courts thought the case against them was frivolous — and never got a lawyer. The Court must have sent them the request for a response (at their businesses addresses), but they either didn’t properly understand its significance or chose not to get a lawyer, though I assume that the city would likely have gotten a lawyer to represent them. Presumably at this point they will remedy that condition.

Jess Bravin has an interesting report on the Cold War-era plans to relocate the Supreme Court to Asheville, North Carolina in the event of an enemy attack on Washington, D.C.

Sunday’s NYT featured an extensive article by Adam Liptak arguing that the Roberts Court has been particularly friendly to business interests, particularly in comparison to its predecessors. This is not a new claim. In fact, Liptak has reported on the Roberts’ Court’s alleged pro-business leanings before, drawing on many of the same experts (including yours truly).  We’ve discussed this issue frequently on the VC as well. (Here are posts from 2008, 2009, 2010, and 2011.)

Sunday’s article relies heavily on a new study evaluating the Court’s business-related cases over several decades.

the business docket reflects something truly distinctive about the court led by Chief Justice John G. Roberts Jr. While the current court’s decisions, over all, are only slightly more conservative than those from the courts led by Chief Justices Warren E. Burger and William H. Rehnquist, according to political scientists who study the court, its business rulings are another matter. They have been, a new study finds, far friendlier to business than those of any court since at least World War II.

In the eight years since Chief Justice Roberts joined the court, it has allowed corporations to spend freely in elections in the Citizens United case, has shielded them from class actions and human rights suits, and has made arbitration the favored way to resolve many disputes. Business groups say the Roberts court’s decisions have helped combat frivolous lawsuits, while plaintiffs’ lawyers say the rulings have destroyed legitimate claims for harm from faulty products, discriminatory practices and fraud.

Whether the Roberts court is unusually friendly to business has been the subject of repeated discussion, much of it based on anecdotes and studies based on small slices of empirical evidence. The new study, by contrast, takes a careful and comprehensive look at some 2,000 decisions from 1946 to 2011.

The new study cited by Liptak is “How Business Fares in the Supreme Court” by Lee Epstein, William Landes, and Richard Posner, recently published in the Minnesota Law Review.  In addition to concluding that the Roberts Court is more friendly to business interests than its predecessors, the study also concludes that Chief Justice Roberts and Justice Alito are more likely to vote in favor of business interests than any other justices to have served on the Court during the past 65 years.  The other conservatives on the Court also rank in the top ten most business-friendly justices during this period.

The Epstein-Landes-Posner (ELP) study is certainly the most comprehensive examination of the Supreme Court’s handling of business-related cases in the post-New Deal era.  But I am not sure that this study can really substantiate the claim that the Roberts Court is notably more “pro-business” than its predecessors or that current justices are any more sympathetic to business interests.  The reason for this is that the methodology chosen by the study’s authors — determining whether a business interest won or lost in each case and then tallying up the decisions and individual justices’ votes — doesn’t account for the content of the studies or the doctrinal baseline.  As a consequence, a more “pro-business” court may actually produce decisions that are less business-friendly than one the is deemed “anti-business.”  Further, while the dataset used in this study is more comprehensive than that used in prior reports (including a prior study by these same authors) it still fails to account for classes of cases that could alter the results.

The ELP study bases its characterization of the Roberts Court as more “business friendly” than prior courts because the Roberts Court ruled in favor of business litigants more often than did its predecessors in cases in which business litigants faced off against a “non-business entity expected to have an adverse view of business, such as a union or the government.” (The study also included a smaller set of business-vs-business cases that could be characterized as “pro” or “anti” business.)  Individual votes for or against business litigants are also considered. This methodology treats all votes in favor of the business litigant equally, no matter what was at stake.  The reason this matters is because the legal baselines has shifted dramatically in the period under study.   So, for example, if the Court votes 6-3 in period A to recognize a new implied cause of action, but then votes 6-3 to reject further expansion of the cause of action, this ELP methodology will find that the court has become more “pro-business,” even though the law remains less business friendly than it had been the first decision.  Further, insofar as we can expect more litigation seeking to expand causes of action than to overturn prior precedents authorizing such suits — even if only because the current court is even more reluctant to revisit settled interpretations of extant statutes than it is to green-light new avenues of litigation — we can expect a status-quo oriented court to be “pro-business” under the ELP methodology, even if it continues to shift the law in a less business-friendly direction.

The potential problems with this approach can be readily seen in the environmental context.  In Massachusetts v. EPA the Court held 5-4 that the EPA has authority to regulate greenhouse gases under the Clean Air Act.  Several years later, the Court held, 8-0, that the Clean Air Act displaced suits against corporations alleging that greenhouse gas emissions contributed to a public nuisance under federal common law.  Under the ELP methodology, we have one pro-business and one anti-business decision and 12 pro-business votes and only 5 anti-business votes.  Yet the combination of these two cases is a dramatic expansion of federal regulatory authority over American business.  Massachusetts is without doubt one of the most significant business-related decisions of the Roberts Court, while AEP was a footnote.  Massachusetts altered the law of standing and triggered a new burst of federal regulatory activity, while AEP applied well-settled doctrine in a clear and straight-forward manner. So a combination of decisions that, on the whole, are quite “anti-business” would not be characterized as such in the ELP methodology.

The dataset relied upon in the ELP study is also limited, as the authors readily acknowledge.  Although the authors improved upon the case characterizations routinely used in the relevant political science literature — and chronicle how poorly the many business-related cases have been coded in past studies — the new dataset has potentially significant blind spots as well.  By focusing on cases with business litigants, ELP were able to account for cases that were not classified as concerning economic activity or other business-related questions in the Supreme Court Database.  But the focus on business litigants as named parties in the case caption leads to significant omissions, including cases in which business litigants were parties but not the first named party, were intervenors, or otherwise had substantial interests at stake.  So, for example, the aforementioned Massachusetts v. EPA is not included in the ELP study because neither Massachusetts nor the EPA would be classified as a business litigant.  Yet there are few cases in the past decade that were more important to business.

The number of omitted cases could be quite significant.  As ELP note, their dataset omitted just over 20 percent of the cases in which the Chamber of Commerce filed an amicus curiae brief between 1979 and 2006.  Whether the omissions matter depends on whether the omitted cases are representative of those included in the study. Among the business-related cases omitted are all those styled as between a government agency and a public interest group.  So just as “anti-business” decisions of the Roberts Court like Massachusetts v. EPA were omitted, so were “pro-business” decisions of earlier courts, such as Lujan I, Lujan II, and Sierra Club v. Morton, just to name a few that came immediately to mind.  Other cases in which public interest organizations, unions, or private individuals  were the first named parties suing government agencies would also have been excluded, and there’s reason to suspect there are enough of these cases to affect the study’s results to some degree.

Quantitative studies of the Supreme Court’s behavior can be illuminating, but they only go so far, and they have a difficult time accounting for the actual impact of the Court’s decisions.  Not all cases are created equal.  A single case, such as Massachusetts v. EPA (or Wyeth v. Levine, to note another significant business loss in the Roberts Court), may be more significant than a half-dozen cases in which differently aligned interests prevailed.  Ultimately, if one wants to know whether the Court is more or less friendly to business (or any other interest) one should look at the doctrinal result of the Court’s decisions.  More “pro-business” decisions do not necessarily create a more “business-friendly” legal environment.

Several years ago I offered this preliminary assessment of the Roberts Court and its treatment of business cases:

To the extent the Roberts Court is pro-business, it is so not because it has embraced an aggressive agenda to impose constitutional constraints on the government’s power to regulate economic activity or to rewrite the law to favor business interests. . . . Rather, the Roberts Court can be called pro-business insofar as it is sympathetic to some basic business oriented legal claims, reads statutes narrowly, resists finding implied causes of action, has adopted a skeptical view of antitrust complaints, and does not place its finger on the scales to assist non-business litigants

I think this assessment still holds, though I would add that the Roberts Court does appear particularly hostile to what some might call “regulation-by-litigation,” particularly as practiced by plaintiffs lawyers, though not to regulation, as such.  The Roberts Court has largely (though not completely) turned away efforts by plaintiffs lawyers and others to open new avenues of litigation against corporations, but it has also largely (though not completely) preserved the inroads made by plaintiffs’ lawyers and progressive interest groups in the 1970s.  That’s not the record one would expect from the most “pro-business” court of the past 65 years.

UPDATE: William Landes responds with two points:

(1) I would have added the finding that the main reason the Roberts Court is more pro-business is that it takes about 2/3rd of the cases from business petitioners compared to 1/3rd during the Warren Court. Since petitioners win about 65 % of the cases, this is pretty good evidence that the Roberts Court is more pro-business. (2) It is much easier to point out shortcomings of our study then to come up with a better way to study the Court”s attitude towards business–that you haven’t done.

Prof. Landes is right to note that the increase in the percentage of business cases with business litigant petitioners is notable.  But there are multiple plausible explanations for this, including the existence of a “status quo” court that is uninterested in expanding new avenues of litigation, but also reluctant to disturb settled expectations or overturn prior decisions recognizing implied causes of action and the like.  If, as I suggested, we may expect to see more litigation seeking to expand causes of action against businesses than litigation designed to eliminate such causes of action, the majority of relevant cases to reach the court will be filed by business petitioners seeking to overturn lower court decisions that departed from the status quo by expanding on the pre-existing range of recognized avenues of litigation.  Such a pattern — which I think can be observed in the Court’s securities cases — would yield both an increase in the portion of business litigant cases in which businesses are petitioners and an increase in business win rates, without making the law any more business friendly than it had been before.

The significance of the increase in business litigant petitioners may also be the result of more active litigation by business interests.  As the Liptak article notes, research by Adam Chandler shows that the U.S. Chamber of Commerce and other business-oriented groups have dramatically increased their efforts by, among other things, filing more cert-state amicus briefs.  Further, as Richard Lazarus has documented, the business community has relied more heavily on an increasingly specialized Supreme Court bar, suggesting another reason we may see more successful business petitions.

As for my alternative, I think that broad gauge quantitative studies of this sort are inherently limited.  More useful, in my view, are analyses that focus on more clearly defined sets of cases (e.g. employment discrimination, securities, class-actions, etc.) in which it is easier to generalize about the interests involved and that pay some attention to the underlying doctrine (a point Michael Greve also makes here).  If a given Court is more “liberal,” “conservative,” “pro-business,” “anti-business,” or whatever, we should expect to see some difference in the underlying doctrine and substantive case results.  Thus (and I repeat myself), one case that shifts doctrine in a given area is far more significant then a half-dozen that maintain the status  quo.  Accounting for this sort of thing is more difficult — and cannot always be reduced to quantitative terms — but it can also yield a better understanding of the Court.

Finally, let me reiterate that, with this study ELP have made an important contribution in identifying some of the significant limitations of the case characterizations in the Supreme Court Database relied upon in much of the political science literature.  This, in itself, is no small thing.

From James Wilson Pickett to the Elena Light Orchestra, compiled by Kevin McGuire.

I wrote yesterday about the French Court of Appeals decision holding that French train companies did not violate international law (and particularly the Fourth Geneva Convention) by building a light rail system in Jerusalem, including areas occupied by Jordan before 1967.

The case, PLO v. Alstom, is a perfect foreign coda to the Supreme Court’s decision in Kiobel, as it also deals with suits for extraterritorial conduct of multinational corporations (though without the universal jurisdiction twist of Kiobel). It illustrates how the efforts of some American courts to implement international law norms through civil damages remedies is in fact a rather parochial exercise detached from international practice.

1) Most significantly, the Court found that international law does not create liability for corporations. This accords with the view of the Second Circuit in Kiobel – corporate liability was the issue on which cert in Kiobel had been granted, though the case was ultimately decided on extraterritorially grounds. Many who favored corporate liability argued that on this issue, courts should apply not international law, but rather federal common law. In future ATS litigation against companies with some U.S. nexus, the PLO v. Alstom decision will not make plaintiffs’ work easier.

2) The Versailles court also seemed to take a narrow view of aiding-and-abetting liability. The issue is hard to separate from the corporate liability issue, but the Court basically found that even if Israel’s conduct violated international law, the corporation does not incur liability for its involvement.

3) Ironically, the best examples of corporate liability under international law came from ATS cases (where courts had upheld such liability after having been assured of its existence outside ATS cases). Yet the French court brushed off precedents under the ATS by noting that they were merely applications of a “domestic statute” and thus not really international law. There goes global judicial dialogue – or perhaps they heard that the ATS was just federal common law!

4) The Court was pretty dismissive of “soft law” – international guidelines, best practices statements, and so forth, in creating or defining customary norms.

5) I argued recently that the U.S. is particularly attractive to human rights plaintiffs for the same reasons it is attractive to all other plaintiffs, and this cases illustrates this well. Because Alstom was the prevailing party, the Court required Palestinian plaintiffs to cover 60,000 Euros of the defendants’ costs. You don’t get that in a dismissed ATS case.

A common trope of many Second Amendment advocates is to urge more vigorous enforcement of existing federal gun control laws, as the alternative to enacting additional laws. Rhetorically, that’s very effective. But as a policy matter, it is not always a good idea. Consider legislation recently considered by the Senate:

The Manchin-Toomey amendment was supported by the Citizens Committee for the Right to Keep and Bear Arms (CCRKBA), although the group later dropped its support for reasons unrelated to the issues raised in this post. Section 102(3) of Manchin-Toomey was the finding that “Congress believes the Department of Justice should prosecute violations of background check requirements to the maximum extent of the law.”

The alternative to Manchin-Toomey was the Grassley-Cruz substitute, which was supported by the National Rifle Association. Grassley-Cruz had a much more detailed program, with supporting funding, to increase federal prosecutions for violations of 18 U.S. Code 922 (the section which defines most of the prohibited acts by persons who are not licensed firearms dealers) and section 924 (the penalties section, with penalties for the various offenses by licensed dealers and by other persons, as well as definitions of some additional crimes). The beefed-up enforcement is in pages 15-26 of Grassley-Cruz.

Both Manchin-Toomey and Grassley-Cruz included a variety of other changes in federal gun laws, and some of them were very constructive. But as for the prosecution provisions, I think they were dubious.

To begin with, much of what is in section 922 is possessory offenses, occurring entirely within a single state. Supposedly, these provisions are enacted under Congress’s power “to regulate Commerce...among the several States.” I realize that Supreme Court since 1937 has usually been reluctant to rule that a federal criminal statute is outside the interstate commerce power. However, that judicial deference to congressional statutes is premised on the notion that Congress itself has carefully considered the constitutionality of a statute. Chief Justice Marshall’s opinion in McCulloch v. Maryland expressly discussed this point (regarding the Necessary and Proper Clause). President Andrew Jackson’s subsequent veto of the re-charter of the Second Bank of the United States cited the McCulloch opinion to make his point that the political branches must exercise their own constitutional judgment; that a deferential court has not stricken a particular type of law does not excuse Congress and the President from the task of making their own judgments about whether a particular bill is constitutional.

During the latter 20th century, the Supreme Court was fairly reticent about the meaning of the Second Amendment, but many legislators and citizen activists opposed particular anti-gun bills because they believed that such bills violated the Second Amendment. Even when there was no realistic prospect that the Supreme Court would strike down a federal law on Second Amendment grounds (e.g., in 1975), it was legitimate for legislators and citizens to oppose a bill because of Second Amendment scruples.

Accordingly, it is equally legitimate to oppose a bill today because of Commerce Clause scruples. I believe that Justice Thomas’s concurrence in Printz v. United States raised a useful question. While he joined the majority opinion (Congress cannot order local law enforcement to carry out federal background checks), he also wondered if Congress’s power over interstate commerce really permitted Congress to prescribe how a firearms retailer in one state would sell an item to a consumer in that same state. A fortiori, there are even more serious questions about federal laws regarding the mere possession of firearms intrastate, or setting conditions for firearms transactions among two people in a single state, neither of whom is engaged in interstate commerce. (The Federal Firearms Licensee is, at least, someone who is actively engaged in commerce, and who frequently receives firearms in interstate commerce, even though his subsequent sales may be only intrastate.)

Many of the provisions of sections 922 and 924 which apply to purely intrastate and non-commercial activity might well be legitimate subjects of state legislation. For example, every state has laws against gun possession by convicted felons.

But not everything in 922 would be a good idea for any level of government, and a blanket increase in enforcement of all of 922 would harm innocent people. For example, 18 U.S.C. 922(x) bans handgun possession by persons under 18. There are certain exceptions to the prohibition, but they require “the prior written approval of the juvenile’s parent or legal guardian.” Now in the United States, do you think that when 17-year-olds on a ranch take a handgun with them in the pick-up truck to go check on the cattle at night, that their parents have given them “prior written approval”?

Lack-of-written-permission prosecutions under 922(x) are close to nil, and they ought to stay that way. Demanding more 922 prosecutions could have the unintended effect of giving U.S. Attorneys and BATFE (Bureau of Alcohol, Tobacco, Firearms and Explosives) agents an incentive to boost their numbers by bringing such cases.

Or let’s consider the call for greater prosecutions of people who fail the National Instant Criminal Background Check System (NICS), when they try to buy a gun in a store. The vast majority of such situations do not result in a prosecution. Is it possible that some more of them should? Yes, to the extent that some of these people are genuinely dangerous. However, I suggest that the reason that many people submit to a background check in the first place–sometimes waiting hours or days for the FBI or its state counterpart to conduct the “instant” check, is that they have no idea that they are a prohibited person.

For example, in 1979, a young man gets in a loud argument and shoving-match with his live-in girlfriend. The neighbors in the apartment next door are annoyed by the clamor, and they call the police. The young man spends a night in jail, pleads guilty to disturbing the peace, and pays a $100 fine. He may have actually been innocent, since the girlfriend shoved first. But the cost of hiring a lawyer to take the case to trial was more than he could afford. Thereafter, he stays out of trouble. He buys a gun in 1985. In 1994, when his state (let’s say it’s Virginia) now has a functioning instant check system, he buys another gun, and is duly approved. In 1996, Congress changes the law to prohibit gun possession by domestic violence misdemeanants, and make the prohibition retroactive to misdemeanors from before 1996. 18 U.S. Code 922(g)(9).

By 2013, BATFE has scoured state records of misdemeanor convictions, and decided which cases it will classify as “domestic violence.” So now the man is on the FBI’s prohibited persons list. When he tries to buy a gun in 2013, he is rejected. You can argue the pros and cons of whether he ought to be prohibited, but to me, it seems very unfair for him to be prosecuted for a federal felony.

There are many, many other examples of people who can be prohibited persons without realizing it. The Iraq War veteran who received some mental health benefits, and then the Veterans Administrations gave his name (and the names of thousands of other similar veterans) to the FBI. The woman who is a lawful user of medical marijuana pursuant to her state law, and did not know that the federal government had obtained the state list of persons with medical marijuana cards.

For above examples, it is really not a problem that no federal prosecution results when they fail the NICS check.

To the extent that federal incentives is meant to drive up the numbers for prosecutions of 922 in general, some of these people would be prosecuted even if they were not attempting to buy a gun. Perhaps one of them is driving home from a day at the target range, and a police officer pulls them over for a traffic violation, and sees the unloaded rifle in the rack of the pick-up truck. The officer runs the person’s name through the databases, and then apprehends a prohibited person in possession of a gun. A very easy federal felony prosecution, and the kind that would happen more often when federal incentives are trying to boost the number of cooperative state-federal prosecutions under 922.

I agree with the federal circuit cases that have held that illegal aliens do not have a Second Amendment right to possess firearms. But the fact that a law is constitutionally legitimate does not mean that maximizing prosecutions is always a good idea. For example, in United States v. Huitron-Guizar (10th Cir., 2012), the defendant had been brought to the United States when he was three years old. His sister was an American citizen, but he was not.  When he was 24 years old, he was discovered to have in his home a rifle, a shotgun, and a handgun. He was sentenced to 18 months in federal prison.

Grassley-Cruz put its greatest efforts into increasing prosecutions for convicted felons and fugitives. These are categories for which firearms prohibition, as a general matter, is plainly allowed under District of Columbia v. Heller. However, there’s a difference between prosecuting the guy who was released from prison for armed robbery four months ago, and is found to be illegally carrying a handgun outside a liquor store — and the guy who was convicted of tax evasion or marijuana possession three decades ago, and whose home is found to contain the unloaded hunting rifle he inherited from his father one decade ago.

The National Rifle Association  and CCRKBA have quite persuasively documented the tendency of BATFE to, at least some of the time, try to boost its numbers by concentrating enforcement efforts on easy-to-prosecute technical violations, rather than on situations where there is a real danger to public safety. Enacting new laws demanding “maximal” enforcement of NICS, or trying to increase the prosecutions for 18 U.S.C 922 & 924 across the board, would be a poor use of criminal justice resources, and would inflict very excessive penalties on many people who are harmless. If proponents of increased federal prosecution can document a large number of cases which really should be prosecuted, and which are not being prosecuted, the best solution would be a new President who would appoint a BATFE Director and U.S. Attorneys who would bring the cases which really help public safety–and who would also know that not every violation of every iota of sections 922 and 924 is worth making a federal case.

The scandal goes on.  Adam Liptak reports.

Some commentators mistakenly think a federalism-based approach to the DOMA case will cause a flood of litigation and generate massive legal uncertainty, but that’s not the real chaotic threat at the Court.  Orin notes the practice of paying people to stand in line for you to get into the Supreme Court for oral argument in important and highly publicized cases.  I can speak to this phenomenon first-hand. I attended the oral argument in the marriage cases on both days and witnessed it up close, along with even more questionable queueing practices.  Forget about federal court jurisdiction.  What’s happening in the lines outside the Court in these big cases is a scandalous display of bad manners.  It was the real standing problem in the marriage cases.

There are actually two lines to get into the chamber, which has very limited seating capacity.  One is for the general public, and in high-profile cases it’s quite long.  The other is for lawyers who become members of the Supreme Court bar.  Bar members enjoy a limited number of reserved seats at the front of the audience, right behind the lawyers for the parties in the case.  The public sits in the back, although given the small size of the courtroom their seats are very good — if they show up early enough to snatch a place. 

I joined the Supreme Court bar ($200 one-time fee) in order to get into the marriage arguments. I knew the lines would be long, so I arrived Tuesday morning at about 3:15 a.m., thinking that would be good enough to get me in.  I was about 57th in line at that point for about 100 seats in the bar section.  In front of me were mostly paid line-standers who had been waiting in the 30-degree temperatures all night.  I talked with quite a few of them.  None were members of the bar.  Almost all were impoverished and black.  Many of them slept on the ground, in cold and wet conditions, for several nights.

As daylight approached, a lot of equality advocates arrived to take their premium places in line.  These “clients,” as the line-standers called them, paid about $50 an hour to line-standing-service middlemen organized as businesses (I don’t know what the actual line-standers earn per hour).  For the Prop 8 case,  it cost as much as $6,000 to get to the front of the line and guarantee a seat in the courtroom.  Neither the Supreme Court nor any law-enforcement authorities prohibit this practice.

I don’t categorically object to line-placement capitalism, especially for private functions like buying tickets to a rock concert.  It’s an economic exchange in which the highest bidders get what they want and others sell their services and earn money they wouldn’t otherwise get.  It does seem odd to hold what’s effectively a private-market auction for seats at a public hearing of the country’s highest court.  Many of the buyers who participated in this particular market, given what I know of their other political preferences, would be hard put to defend this system in a public forum. 

They started letting us into the Court at about 7:30 for the Prop 8 argument on Tuesday.  I got into the main room, third row from the front, not more than 50 feet from the Justices.  Getting there early — and being able to stand in a separate bar-members line – had paid off.

But what happened the next day for the DOMA argument was appalling.  I arrived at 2:15 a.m. when the temperature was a balmy 40 degrees and was headed down.  I was 46th in line, again with a group consisting almost entirely of paid line-standers in front of me.  There were very few bar members personally waiting in line at that time.  The Court had space for fewer bar members that day in order to make room for an extra table for counsel arguing the jurisdictional issues.  But even with more limited seating, #46 was still sure to get in.

As 7 a.m. approached and the lawyers arrived to take their pre-paid places in line, something else happened.  They started inviting their friends to join them at the front of the line, pushing back people who had waited all night to get in.  The lawyer-clients of several of the line-standers near me never arrived to relieve their assigned line-standers, no doubt because they cut in line further up than what they had paid for.  Pretty soon, I was #55 and then #65 and then I lost count. 

I wasn’t the only one dismayed by this development.  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.  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.  The same line-cutting behavior was infecting the public queue.  The only available remedy would have been self-help.

I didn’t get into the courtroom for the DOMA argument.  Instead, I was shuttled with dozens of other exhausted people into an overflow room where we listened to the proceedings.  There was an advantage to this alternative room:  we were allowed to react more visibly and audibly to the arguments.  We weren’t expected to sit there impassively like Justices at a State of the Union speech.  Considering that I sat near the likes of Walter Dellinger and Paul Smith, my initial frustration subsided, though I can’t say the same for all of the other people who lost their seats in the courtroom. 

I’m not sure what the alternative to this state-of-nature queueing at the Court would be.  Social pressure and shame obviously aren’t enough to enforce good manners and common decency.  But as a colleague of mine observed, if Walmart can figure out how to prevent stampedes on Black Friday, there must be a better way to decide who gets past the pediment that says “Equal Justice Under Law.”

Whatever the merits of the federalism concerns I and others have raised about the Defense of Marriage Act (DOMA), the issue is garnering a fair amount of attention.  Here’s a brief round-up of some recent commentary:

• Mike Dorf, “The Federalism Argument that Should Have Been Made Against DOMA” - arguing that DOMA’s opponents missed an opportunity at oral argument to appeal to Justice Kennedy with an embrace of federalism concerns;
• Jeffrey Rosen, “Flip-Flopping Federalists” - suggesting a tension between the usual conservative impulse to limit federal power and support for DOMA;
• John Eastman, “The Faux Federalism Argument Against DOMA” – as suggested by the title, an argument that DOMA presents no real federalism concerns (which is interesting coming from someone who has argued the federal government has no power to spend money beyond the scope of its enumerated powers);
• Geoff Stone, “The Same-Sex Marriage Cases: Snatching Victory . . .” – the federalism argument “makes no sense”
• Erwin Chemerinsky, “What Might Happen?” – the federalism argument, if adopted, would produce a “radical change” in constitutional law;
• Peter Lawler, “Same-Sex Marriage, Federalism, and Judicial Restraint” – noting the DOMA litigation rasises issues of both “judicial activism” and “congressional activism.”
• Ilya Shapiro, “If Supreme Court Has Jurisdiction, DOMA Likely Falls, With a Controlling Federalism Opinion from Kennedy Alone” – a rosy prediction.

Today, before hearing oral argument in Hollingsworth v. Perry, the Supreme Court decided Florida v. Jardines.  Splitting 5-4 the Court held that when police brought a drug-sniffing dog onto a homeowner’s front porch it did constitute a “search” for purposes of the Fourth Amendment.  Orin may have more to say on the merits.  Of immediate interest, however, is the lineup.  Justice Scalia wrote for the majority, joined by Justices Thomas, Ginsburg, Sotomayor and Kagan.  Justice Alito dissented, joined by the Chief Justice, and Justices Kennedy and Breyer.  Justice Kagan also filed a concurring opinion joined by Justices GInsburg and Sotomayor.

Among the orders issued by the Supreme Court this morning was a grant of certiorari in Schuette v. Michigan Coalition to Defend Affirmative Action , in which the question is whether a state ballot initiative prohibiting the consideration of race in state university admissions violates the Equal Protection Clause. The case arises from a lawsuit challenging the constitutionality of the so-called Michigan Civil Rights Initiative. The U.S. Court of Appeals for the Sixth Circuit, sitting en banc held 8-7 that the initiative was unconstitutional. As Lyle Denniston reports for SCOTUSBlog, the timing of the grant is something of a surprise given that the Court has yet to rule in the Fisher case, which involves a constitutional challenge to the use of race in public university admissions. Were the Court to rule that any and all use of race in admissions violates the Equal Protection Clause, there would be nothing for the Court to consider in Schuette.

On Thursday, Stanford law professor and former federal appellate judge Michael McConnell suggested the Supreme Court should avoid ruling directly on the constitutionality of same-sex marriage by denying Proposition 8′s supporters standing to defend the initiative’s constitutionality and holding that the Defense of Marriage Act exceeds the scope of federal power. NRO’s Ed Whelan, who has previously criticized the federalism arguments against DOMA, responded to McConnell’s arguments here and here. McConnell sent Whelan a reply, which Whelan has posted with his response here.