Recommendations to Improve Access to the Supreme Court

Last week, I flagged SCOTUSBlog’s series of posts about access to the Supreme Court. Today, Amy Howe offers several recommendations of how to improve the process. I whole-heartedly concur.

First, Amy urges the Court to continue live-streaming arguments next term. She writes that the parade of horribles we were warned about simply has not happened:

None of the evils that are often cited as reasons not to allow live-streaming surfaced during the first week of live audio. There was no grandstanding by either the lawyers or the justices, and with the exception of an apparent errant toilet flush (which is not likely to occur again, and in any event obviously would not be a problem when arguments return to the courtroom), everything went off more or less without a hitch on the technological side. Having seen first-hand that live-streaming is not only possible but in fact a big success, the Supreme Court should not return to its pre-pandemic status quo, in which audio was never available in real time, and normally was not available until the Friday after an argument.

Amy is exactly right. No one grandstanded. The media and press commented on the case, but in a reasonable fashion. I feared that President Trump would live tweet the tax return cases. Not a peep. The only error, a flushed toilet, came from one of the Justices. I do worry about the risks that protestors may try to disrupt the live-streamed sessions. Justice Kavanaugh will be personally familiar with this problem. But the benefits of live-streaming have now been well-established.

Second, Amy urges the Court to offer more seats in the Chamber to the public:

The court should increase the number of seats set aside specifically for members of the public. Having only 50 of 439 seats in the courtroom – that is, just over 11 percent – in that category is, to put it diplomatically, less than optimal. More of the 186 “reserved” seats in the courtroom that are overseen by the Marshal’s Office at the Supreme Court should be allocated to the public as a general matter. Some of these could come from among the seats that are currently reserved for the guests of lawyers who are being admitted to the Supreme Court bar.

I agree. The Court reserves far too many seats for special guests. The process of obtaining such tickets is shrouded in secrecy–generally, you have to know someone! Let the public into the Court.

Third, the Court should move bar admissions to non-argument days.

Being admitted to the bar in open court is a lovely tradition, and it is nice for lawyers to be able to bring a family member to witness the occasion. However, when a large number of lawyers are admitted on “big” argument days, allowing them to bring guests reduces the number of seats that might otherwise be available to the public – an especially undesirable outcome when many people are sleeping out on the sidewalk overnight in the hope of snagging a seat in the courtroom.

I don’t know if there are enough non-argument days on the calendar to handle all of the bar admissions. The Court can hold special afternoon sessions, after the arguments conclude, to handle admissions. Really, only the Chief needs to be present. I discussed that position here:

Second, admission ceremonies could be scheduled separately for a special afternoon session on argument days. That is, arguments would be held at 10:00 a.m. And at 1:00 p.m. the Court would reconvene, and admissions motions would be considered. This additional session would no doubt create a constraint on Court resources. At a minimum, the Chief Justice would have to attend. But this alternate proceeding could free up between 50 and 100 seats in the visitors gallery for each case, depending on how many admissions there are. This change would allow more people from the public to attend, and more attorneys would be guaranteed admission with their guests. It is certainly a pleasant surprise that attorneys who are seeking admission can, by chance, watch a high-profile case. But that novelty is vastly outweighed by the need for those with a particularized interest to attend.

Fourth, Amy suggests that guests for bar admissions should have to give up their seats after admission ceremony concludes, and the oral argument begins.

The court could address this problem in a couple of different ways, which are not mutually exclusive. First, it could allow lawyers who are being admitted to the Supreme Court bar to bring guests, but then ask the guests to leave the courtroom after bar admissions so that members of the public can take their places.

I really like this idea. The bar admission ceremony takes a few moments. Dozens of seats will open up as arguments begin. The Court’s staff will have to quietly move people in and out of the chamber. It can be done.

Fifth, Amy also suggests that any available empty seats, including those in the press section, should be filled.

More seats could be found for members of the public elsewhere in the courtroom as well. For example, spectators are rarely seated in the first row of the public section; doing so would provide roughly an additional 10 seats. If there are still people waiting in line for seats as 10 a.m. approaches, the court could also allow members of the public to fill other empty seats, such as the press seats in the hallway on the side of the courtroom.

Sixth, Amy suggests that the Court can open an over-flow room.

And on days when seats are in high demand, the court could create an overflow room – as it does for lawyers who do not get seats in the bar section – that would allow members of the public who do not get into the courtroom to listen to a live feed of oral arguments elsewhere in the building.

I really, really like this idea. There are several large banquet rooms in the wings. Everyone who is on line could be allowed to sit, quietly, and listen to the arguments. It is not the same as being in the Chamber live, but the Court already creates the experience for the bar lounge. Also, seating in the banquet room allows the PR benefit of walking down the steps. In addition, opening up additional rooms will help with social-distancing. This idea is excellent.

Seventh, Amy asks the Court to ban line-standers.

On the demand end, the court should start by banning line-standers, as it has in the bar line. Just as access to the courtroom shouldn’t depend on whether you know someone at the court who can get you a reserved seat, it also shouldn’t hinge on whether you have the funds to pay someone to stand in line for you, at a cost of $40 per hour or more.

This idea only works if the Supreme Court police are willing to police the line. They have to resolve disputes if someone flags a paid line-waiter. I am skeptical the general public will be deterred by this ban. Indeed, prominent attorneys cut me on the bar line.

Eighth, the Court could hand out tickets or wristband earlier in the process.

The court has traditionally been reluctant to get involved in policing the public line: Officers normally don’t do much beyond handing out tickets at around 7:30 a.m. But other small steps by the officers could help to increase the perception of fairness – for example, handing out tickets or wristbands much earlier in the process (a step that many lawyers in the bar line might also welcome) to ensure that later arrivals don’t join the line and take a spot that should belong to someone who has spent many hours waiting.

I’m not optimistic about this recommendation. People will simply camp out for the wristbands or tickets. Queues form whenever there is a limited supply available for distribution. The only solution is a random distribution.

Ninth, Amy flags my lottery idea:

Blackman has recommended a much more dramatic step: Scrap the line system altogether in favor of a lottery. Such a system would not only address some of the social-distancing issues that the court is likely to face for many months to come, but (even if it included only some of the public seats) it would also give some members of the public more certainty – especially if they plan to travel to the court from out of town – that they will actually get a seat.

The Court should eliminate all requirements to wait on the sidewalk for tickets, wristbands, or any other mcguffin. A lottery, that people can enter in advance, is a safe and fair way to expand access to the Court.

I hope the Supreme Court takes these recommendations seriously. The Court is a conservative institution, and favors glacial change. But the Coronavirus has forced the Court to make certain changes, and those changes have built confidence in expanding access to the Court. I am happy to help in this process any way I can.