Sorry for the grandiose title. Just trying to be descriptive.
I camped out for over 24 hours for the privilege of witnessing one of the more remarkable legal events of my lifetime—Tuesday’s Supreme Court argument on the constitutionality of the Affordable Care Act’s minimum-coverage provision. Having recently read Clare Cushman’s Courtwatchers, I’m inspired to write an eyewitness account of my own. As compared to most everyone else who was there, I have no ideological or jurisprudential dog in the fight. I’m not yet a law student; I claim no special prognosticative powers. I write only for those who wonder what it must have been like to be in the Courtroom on Tuesday. What notes I took are extremely detailed, and my memory is still quite fresh.
Those of us who’d secured general-public tickets for the entire two-hour argument had mostly been escorted into the Court by 9 A.M. I, the 38th person in line, was seated in a comfortable wooden chair that had been placed to the left of one of the benches on the right side of the room, four rows back from the short gated partition separating journalists, clerks, family, and members of the Supreme Court bar from everyone else. Mine was an aisle seat, and I had a completely unobstructed view of all nine Justices. There were more rows of benches behind me than ahead of me, to say nothing of the dozens of stools in the back of the room. I had a better seat than plenty of D.C. elites with reserved tickets (more on that later).
Ken Klukowski of the Family Research Council sat to my right. He’s been involved in this litigation since the beginning and kindly pointed out a few faces I might not otherwise have seen or recognized. Directly to my left, across the narrower-than-usual aisle, was Randy Barnett. Professor Barnett argued Gonzales v. Raich before the Court in November 2004 against then-Solicitor General Paul Clement, and his early and sustained opposition to the ACA on constitutional grounds is widely acknowledged to have informed the challengers’ arguments and bolstered their credibility in federal court. It was kind of surreal to experience the argument only a few feet away from the intellectual godfather of principled constitutional opposition to the individual mandate. He also signed my notebook. (If my bus hadn’t been late leaving Durham and I’d gotten in line just a few minutes earlier, all of this might not have happened. Funny how things work out.)
From 9 to about 9:50 A.M., we were able to move freely about the Courtroom. Ticket holders with reserved seats arrived at random intervals throughout the hour, literally up until the Justices walked out and took their seats. (John Kerry came in at 9:59!) There were lots of two-minute visits and warm greetings among legal and political allies as well as perceived ideological foes. Civility was rampant. Walter Dellinger and Paul Clement were genuinely delighted to see one another, for example. I saw Dellinger speak with both Mitch McConnell and Kathleen Sebelius. Lindsey Graham greeted a few of the state attorneys general in attendance. Laurence Tribe talked to both Secretary Sebelius and Marty Lederman. I enjoyed watching the journalists crane their necks to identify and record the names of all the eminent personages in the room. (Not that I didn’t do exactly the same thing, minus the neck craning.)
Solicitor General Verrilli entered the Court from the front right. He wore the biggest smile in the room. It was like he’d arrived at a niece’s birthday party. He walked forward to kiss someone seated on the second row (probably a close friend or family member). The government’s top lawyer was definitely in high spirits about 25 minutes before the biggest argument of his life.
As for the other administration folks, Secretary Sebelius had the best reserved seat in the Courtroom. She was front and center. Valerie Jarrett also sat on the first row, but on the right side of the room. Attorney General Eric Holder must have been close to her—he was the second person to the right on the rightmost front bench. Secretary of Labor Hilda Solis sat one row behind me and to my left, directly behind Randy Barnett. I was told Gene Sperling (Director of the National Economic Council) was also present, but I don’t know where he sat. Neal Katyal, no longer an active member of the administration, sat on the left side of the Courtroom, almost all the way in the back.
At least nine Senators attended Tuesday’s argument. Lindsey Graham sat two rows directly behind me. Tom Harkin was on Graham’s right, Chuck Grassley on Harkin’s right. Mitch McConnell sat either two or three rows directly in front of Randy Barnett—an aisle seat on the first or second rows (neither my notes nor my memory are entirely clear here). Ron Johnson, John Cornyn, Max Baucus, Pat Leahy, and John Kerry all showed up. I seem to remember the three Democrats in that group sitting in the center “column” of benches, sort of near Secretary Sebelius. One of these Senators (I won’t say which) joked about trying to sell his ticket and get super rich. Another chuckled and asked whether Congress could make the scalping of reserved Supreme Court tickets a federal crime. Representative John Conyers sat one row behind me, slightly to my right. Ken Klukowski pointed out Virginia AG Ken Cuccinelli and Utah AG Mark Shurtleff to me.
It was a real delight (though not a surprise) to see Laurence Tribe in the Court. In terms of lifelong influence, he’s the Edward Corwin or Thomas Reed Powell of our era. I’d seen him once before, at Justice Kagan’s nomination hearings. But it was just extraordinary to be in his immediate presence (he sat one row ahead, three seats to the right of me) and observe his facial expressions as the Justices, two of whom were once his students, debated an issue that will do much to shape the next generation of constitutional theory, much like Brown and Roe did. I was much more surprised, though hardly less delighted, to see Bryan Garner sitting in the row ahead of Professor Tribe. Yes, I know what Bryan Garner looks like. I read Garner on Language and Writing last year, and ever since he’s been a personal hero in my petty crusade to get the world to start hyphenating phrasal adjectives correctly. Without question, Garner is one of the wisest people on the planet. Rounding out the list of academic types, or at least those I noticed, Georgetown’s Marty Lederman sat two rows behind me and to my left, directly behind Hilda Solis.
At 9:50 A.M., we were basically told to shut up and sit down. I excelled at both. At 10:00 on the dot, the Marshal of the Court Oyezed the Justices to their swivel chairs. Around this time, I remembered how many people were disappointed with the Court’s refusal to allow TV cameras inside to broadcast the health-care arguments. Fortunately for these folks, I’ve preserved for posterity lots of historic details that don’t appear in the transcript, like when the Justices took drinks of water and leaned back in their chairs. Here’s a running account of my observations. Each thought or sentence gets its own bullet. Anything in brackets is an appropriate supplement from my memory. Everything else is taken verbatim from my notebook or is a faithful expansion of my chicken-scratch shorthand.
–PACKED Courtroom. [duh.]
–Rough start for Verrilli. Didn’t memorize his opening? Got going after his drink of water (strategic, seems, not scratchy throat). [a friend also in the Court said he/she saw him wipe his right palm on his side, as if to rub off sweat.]
–Sotomayor tried but failed to ask questions a few times early on.
–Alito’s burial hypo got lots of smiles from the crowd.
–Kagan sips from coffee cup during long Alito question at 10:10.
–Lots of perking up and shifting in seats [audience] when Kennedy first spoke (10:12). [almost comical to see. Everyone knows how crucial Kennedy’s vote is for both sides.]
–Justices are taking this very, very seriously (if demeanors are any indication). [this was before the “frivolity,” I guess.]
–Sotomayor wearing huge round earrings. [gold, I think. They looked nice.]
–Breyer talking to Thomas during Kennedy’s limits question. Then he and Sotomayor talked.
–Scalia first to lean way back in chair.
–Breyer sips at 10:20, then stares at ceiling.
–He [Breyer] makes funny hand gestures during laugh (10:20).
–Thomas rubs head twice at 10:22.
–Alito sips during long Sotomayor question at 10:24.
–Scalia looks really skeptical. [This continued throughout most of Verrilli’s argument. Seriously, a deaf person knowing nothing of his prior judicial history would bet on his voting against the government.]
–Thomas chewing on something at 10:27.
–Courtroom well ventilated. [I actually got chills later on, and not because Clement did such a good job. I was also one of the only people in the Court without a suit. What’s an out-of-towner to do?]
–Bench exploded with rocking during Verrilli’s Lochner mention (10:33).
–Verrilli sips at 10:34.
–As of now, seems like Scalia and Kennedy would vote for challengers.
–Kagan sips at 10:37.
–Kagan, Ginsburg, and Breyer have all thrown softballs at Verrilli. Sure votes to uphold.
–Roberts warns of precedential implications of upholding mandate. Legacy protection.
–10:45, and Kagan has put her glasses on.
–Roberts’s question on principled limits could be devastating to gov’t. V gives no concise answer. [paging Neil Siegel]
–Kagan sips at 10:48.
–Out of nowhere, Sotomayor shifts to tax issue.
–10:54: Verrilli mentions Baucus, who’s in the room.
–Verrilli sips at 10:56.
–Roberts calls for a one-min. break. Lots of getting up, stretching legs, moving around, soft chattering. [just like any other intermission. One woman even left the Courtroom (presumably to go to bathroom) and was escorted back inside during Clement’s argument.]
–Nearby watch beep at 11. [electronics in the Court?!?! some watches have spy cameras!]
–Kagan sips at 11:02.
–Breyer at 11:07: Congress has created commerce out of nothing before. [though not under the Commerce Clause]
–Breyer: vaccine hypo at 11:10. [Clement didn’t give a clear answer.]
–Page brings Breyer a HUGE book at 11:15.
–Thomas stares straight at ceiling at 11:22.
–Kennedy’s brought a book at 11:23.
–Clement’s “Garciaize” gets at least one muted giggle (me).
–Clement: mandate would be a direct tax if it were a tax. [at least as novel a constitutional theory as claiming mandate’s justified under Commerce Power]
–Clement: states could have passed this mandate. [which brought him to his broader point about the difference between enumerated powers and police powers. Not the best question for Sotomayor to have asked if she was trying to trap him.]
–Very demonstrative. Much like Bloomberg/SCOTUSblog vid.
–Feds can’t require vaccination if epidemic is sweeping USA.
–11:37: Thomas stares at ceiling. This defines staring at the ceiling.
–11:40: Breyer stares at ceiling. [Thomas could teach him a thing or two.]
–11:46: Breyer cites Sutton’s concurrence. Carvin says Sutton was wrong in all of his examples.
–Kagan, 11:57: Old Commerce Clause tests didn’t work. Why should this one? Tribe smiles faintly.
I guess no one sipped during Verrilli’s rebuttal. The case was submitted shortly after 2 P.M.
After taking another good look at the room, I exited through the bronze doors on my right. Kathleen Sebelius was right behind me. I had a notion of locating Professor Tribe in the Great Hall and asking him to sign my notebook, but I thought better of it (and couldn’t find him). I retrieved my backpack from the coat-check room and exited the building through an even larger set of bronze doors. The sensation of walking down those storied marble steps in the face of absolute uproar beyond the empty plaza was entirely foreign to me. Pope Benedict must feel like that when he addresses crowds from the balcony of St. Peter’s. The Little Rock Nine come to mind. It seemed as if all of Washington had stopped what it was doing to shout and stare at me (and at Neal Katyal, whom I followed down the steps). Dozens of cameras were pointed in my direction. To the extent that I’ve ever been present for anything historic, it’s always been as part of an anonymous, faceless audience. I felt completely out of my element.
After Katyal and his companion parted, I asked if he’d sign the inside cover of my notebook. He did, and we had a very brief conversation. I told him I’d just finished The Challenge and loved it. (Seriously, it’s a riveting read.) He was incredibly kind to me, far beyond what’s expected.
I also got Bryan Garner to sign (under Randy Barnett). I’m afraid my friend Monica outdid me, though. She really worked the room before the argument began and wheedled several somebodies into signing her pocket Constitution.
Bill Suter and Pat Leahy:
And best of all, Paul Clement, in the middle of Article I, Section 8:
I hope to do reasonably well in this profession, but for now I’m just a kid with no formal legal training. I—and not virtually all people who have spent their lives thinking and writing about Congressional power, federalism, and health-care policy—was one of about 400 Americans (.0000012837% of the population) who watched Day 2 unfold from within. It felt like I’d wandered into a modern School of Athens. It seems absurd that my enduring for a single night what hundreds of thousands of Americans abide in hopeless perpetuity entitles me to sit among the greatest legal minds of the age to witness one of the more remarkable constitutional episode of my lifetime. It’s also amazing that I had a much better view than some Senators who’d voted for the ACA and a lawyer who’d defended it in federal court.
It was quite a day.