Tuesday, November 01, 2005

Supreme Court of the United States - what it is like inside

February 28. 2001 was a very fun day for me. That was the day I was sworn in as a member of the Bar of the Supreme Court of the United States.

A few months earlier, Jay Sekulow came in to see my boss, Roberta Combs, at the Christian Coalition. While talking with Jay, I mentioned that I wanted to become a member of the Supreme Court Bar. Jay eagerly volunteered to move for my admission and suggested that I pick 2/28/2001 as the date for getting sworn in because the ACLJ would be arguing a religious liberties case in the Court…Good News Club v. Milford Central School.

I arrived early at the Courthouse and joined Jay and his lawyers in the cafeteria on the bottom floor, near the lawyer’s entrance. We were then all ushered up to room upstairs where we could leave our coats and briefcases. We were introduced to Major General (retired) William Souter (no relation to David Souter), the Clerk of the Supreme Court. General Souter then described the swearing in process.

This was the second time I had met General Souter. Back in April 1994, I had the opportunity to meet General Souter at a CLE conference. I had just submitted my first (and to this date, only) petition in certiorari to the Supreme Court of the United States. I had a copy of the petition with me and the General was impressed that his office accepted the petition on my first try (because of the strict format requirements, it is not unusual for petitions to be sent back for corrections). At the lunch break, General Souter described my accomplishment to the assembled masses of JAG attorneys…then said, “Petition DENIED!” As it turns out, we had not received the proper number of file stamped copies of the petition back from the Court. I mentioned this to the General. A week after the conference, I got a letter from him with a package containing the missing copies. My boss was impressed. Sadly, cert was not granted in the case.

Anyways, General Souter finally escorted us into the courtroom. Attorney-applicants who are being sworn in, and the attorneys sponsoring them, sit in the front rows on the left side, right next to the press area. I was seated in the second row of applicants and was right next to the press box…my left arm was resting on the railing separating the press from the lawyers. NPR reporter Nina Totenberg was seated in the press chair immediately to my left (the press chairs face that railing….so she was staring right in my direction). General Souter told us that at 40 minutes past the hour, the Chief Justice would stand up and walk behind the curtain immediately to the rear of the bench (he did this to relieve back pain).

[Update] A few minutes before the session was scheduled to begin, General Souter asked if anyone needed to get a drink of water or use the bathroom. I asked about the bathroom; the General gave me a wink and said I should go with him. Instead of taking me to the public bathroom out by the main entrance to the courthouse, General Souter led me back into the middle of the building to a bathroom used by the justices during arguments. Woo hoo!!!

The first order of business after the Justices took to the bench was the swearing in of the new members. The whole process is scripted out and moved with crisp efficiency. Then, the first case of the day was announced: Good News Club v. Milford Central School. Attorney Thomas Marcelle, of the ACLJ, began his argument. He barely got a few sentences out of his mouth before Associate Justice Scalia jumped in with a question. Here is what happened:

Marcelle: The Second Circuit circumvented this Court’s decision in Lamp’s Chapel by resurrecting a distinction that this Court buried in Widmar. A distinction between constitutionally-protected speech and unconstitutionally-protected religious worship and instruction.

Scalia: Mr. Marcelle, did you cite Lamp’s Chapel to the Second Circuit?

Marcelle: Yes, your Honor, quite extensively, and dissent as well said, Judge Jacobs said the case couldn’t be squared with Lamb’s Chapel.

Scalia: Lamb’s Chapel, if I’m correct, is not even cited in the Second Circuit’s opinion, is that right?

Marcelle: Isn’t even mentioned. And I think the way they got around Lamb’s Chapel, Your Honor, was really by embracing the distinction that this Court rejected in Rosenberger, a distinction. . . .

Scalia: I assume the judge who wrote the opinion for the Second Circuit was aware of Lamb’s Chapel, not just because you cited it, but because it had reversed an earlier decision of his, isn’t that right?

Everyone in the courtroom broke out in loud laughter! The rest of the oral argument was a romp. The justices used the attorneys as foils for their humor. One justice would ask a rhetorical question to an attorney…the attorney would barely get an answer out of his mouth before another justice would respond the to partial answer. The justices were really having a humorous conversation between themselves by bouncing comments off of the lawyers.

The next day, I was at the Weyrich Luncheon. At the end of the meeting, when the floor was opened for comments, reporter/activist Tom Jipping rose to tell the assembled lobbyists that I had been admitted to the Supreme Court Bar and mentioned that this was a major honor…hitting the big leagues. I got a round of applause from DC’s conservative core. What a rush!

Several months later, I attended the oral arguments involving the Cleveland, Ohio school vouchers. While I was waiting in line, I talked about the Good News Club oral argument with the lawyer behind me. When I mentioned Scalia’s questions to the attorney, the lawyer’s eyes opened wide. Turns out, he once clerked for that Second Circuit judge. In fact, he had just gotten a news letter from that judge discussing the Supreme Court’s decision in Good News Club. The letter said, “Once again, the Supreme Court got it wrong.” Oh? Really? That was rather pompous of him! Last time I checked my federal rules of appellate procedure, decisions of the Supreme Court outweighed decisions of the Second Circuit.

I guess that just shows you the arrogance of some liberal judges! Good reason to keep them off of the Supreme Court.


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