My annual visit to the Supreme Court

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Nov 10, 2015 My annual visit to the Supreme Court

Each year, I usually find a morning that court has been rescheduled or a jury trial has been settled, to view a United States Supreme Court oral argument. Today was that day for this year.

Arriving at the courthouse after 9:30 a.m., I found the Supreme Court bar’s seating area full, so sat in the lawyers lounge listening to the first oral argument in the Tysons Food class action case, where Tysons seeks to narrow the population of people eligible for a class, here in a Fair Labor Standards Act suit where different animal food processing plant employees (I eat vegan) took differing timeframes to don and doff (what a phrase) their work clothing and walk to their work stations, for which the class claimed an FLSA-violative failure to pay overtime.

Before oral argument started, a United States marshal (they seem to keep watch in the lawyers lounge the entire time) announced that lawyers in the lounge no longer may have their cellphones visible in the lounge (and of course never in the courtroom), after a lawyer had previously live-tweeted oral argument from the lounge. Of course, such a silly rule in the lounge would not be needed if the Supreme Court would simply allow live online streaming audio or video of oral argument. As it stands, today’s oral argument transcripts were uploaded the same day to the Supreme Court’s website, and oral argument tapes are uploaded every Friday.

As I had anticipated, the courtroom lawyer’s seating gallery emptied of many lawyers after the Tysons Food case finished, so I got a chance to observe almost from the beginning the Luis v. U.S.  case in the overly-majestic courtroom, where Luis sought to limit or even pare back the application of SCOTUS’s U.S. v. Monsanto case’s permitting freezing the assets of a criminal defendant’s funds shown to be tainted, even if the freezing would deprive the defendant from paying counsel of his or her choice.

In Luis, the defendant’s legitimately-possessed funds were frozen on a mere showing of probable cause that he had committed his alleged crime (probable cause is usually easy for prosecutors to prove, at least to a grand jury, to get an indictment) to make them available for restitution (if I recall correctly) if he were convicted. Luis’s lawyer Howard Srebnick well pointed out the Sixth Amendment violation for such freezing of non-tainted funds, and that access to money to pay lawyers was all the more essential when the Sixth Amendment was passed, which was before the Supreme Court had established the right to court-appointed counsel for indigent criminal defendants.

Justices asked Srebnick how his case is distinguished from Monsanto, and why untainted funds should be treated any more leniently for criminal defendants than tainted funds where sufficient grounds exist otherwise to freeze the funds. Justices asked the Solicitor General’s office’s attorney about where the limits are, if any, for preserving access to funds for a criminal defendant to hire a lawyer of his or her choosing, particularly in this day and age where criminal court fines can reach into millions of dollars for numerous white collar convictions.

One might ask why a litigator should go out of his or her way to visit Supreme Court oral argument when the arguments become available in online transcript and weekly in audio form. Nothing beats experiencing the arguments in the moment, and the Supreme Court is less than an hour from my office. For that very reason, people go to the theater rather than merely reading or listening to the play, or watching it in video format. For those who might end up arguing a Supreme Court case, it is essential to watch and experience the body language, persona, essence and energy of the justices, and to learn the same from the arguing lawyers, who range widely in quality from neophytes who sometimes if not oftentimes would have been wise to have accepted the often pro bono offers of skilled Supreme Court litigators for cases with non-well-heeled clients, to the cream of the crop of experienced Supreme Court litigators.

To boot, once you look beyond the undemocratic majesty of the courthouse and its courtroom that adds to the judicial branch’s being the most undemocratic of the three branches of government, you will find the following in the courthouse:

– A sideview of the two spiral staircases.

– Portraits of my hero Justice William Brennan and many other justices.

– An informative display on my visit around two or three years ago about Korematsu v. U.S., and the heroic stands of the justices who voted against World War II concentration/interment camps for Japanese Americans, and the shameful majority action to permit the concentration camps.

– Talking briefly with then-court clerk William Suter while eating in the courthouse cafeteria around two or three years ago.

– The gift shop, where I can buy souvenirs for friends and my nine-year-old son, who would like to join me to the court on a day that he has no school and I have no court.


Finally, for those betting on the longshot of when Justice Clarence Thomas will next ask a question at oral argument, he remained silent today, although apparently engaged in listening and again, as I have seen before, turning to Justice Stephen Breyer with a grin during oral argument.

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