Tuesday, February 13, 2024
I’ve been thinking about our courts, their workload and decisions, their continuing to function at a time when some other branches of government noticeably are not. I’m willing to bet that everyone reading this has at least one major issue of displeasure with a Supreme Court decision. If you’re like me, there might even be a decision or two you vehemently disagree with. And that’s OK. If we lived someplace where I was in agreement with everything they said, did, thought and wrote – my guess is that wouldn’t be a place some of you would want to live. And vice versa. That’s normal, it’s healthy and if we live long enough, we often see things come full circle. In fact, that’s proving evermore true with the subject of our SCOTUS visit, the future of Chevron reliance. More on that later. For now, let’s go back and visit the experience inside the courtroom.
Actually, we left off inside the press room. Seated at our day desks, I watched as the national big-name outlets you know arrive to start their regular workday. AP, Reuters, PBS, Bloomberg, NY Times and Post, and all the TV networks whose names you know, too; but these faces you don’t. They’re young, they report the story back to HQ, where someone with a name or face you do know delivers the story. These young reporters cluster together and casually discuss other cases they’re reporting from around the district as well as share their predictions for when rulings will come out. They’re fascinating to listen to. After a time, when the room becomes overfull, Elizabeth mentions that it wasn’t like this the last time she was here for the CFPB & Payday Lending case. Last time there weren’t even half this number of reporters. But, as we said, these cases are even bigger.
At about 8:40 a.m., Ms. Ella comes to greet everyone again and tell us collectively the procedures for making our way up to the courtroom (we’ve each heard these individually). Ms. Ella is a delightful and shining woman, who reminds me of my favorite Jr. high librarian, Mrs. Elder. Like Mrs. Elder, Ms. Ella conveys with genuine ease that she’s excited to know you, happy to be of assistance to you, and if you get out of line there will be swift consequences. I believe her and cannot imagine challenging Ms. Ella’s authority on this or any other matter.
There are so many of us we line up by the groups indicated on our press pass, and then like little ducklings following our mother Ms. Ella, we head out the door, up the stairs to and through the Great Hall. My mood shifts, excitement settles down into reverence. Lots of marble has that effect, as does the history of the place, and, at least for me, the sanctity.
Here we go through a second airport-level screening, and our books and pens are checked for authenticity. Our group is led to an alcove on the left-hand side of the courtroom, behind the parted curtains. Ms. Ella says to take whichever of the tiny wooden chairs along the wall we prefer, but once we make our selection and are seated, we may not move. Peeking through the curtains I’m satisfied with my view which will consist of a bit of Justice Sotomayor, then a great view of Justice Thomas, the Chief Justice, Justices Alito, Kagan, Kavanah and Jackson. It’s a really great view for a rookie. Then, it’s “All rise.” And there they are!
They start off with some routine court business before arguments begin, so it’s a nice time to check out the Justices more closely.
I’ve been in the courtroom once before for oral arguments, on a 15-minute public pass-through tour, which luckily resulted in being allowed to stay about 45 minutes. It was a different court back in 2009. Then the Justices were Chief Roberts, Stevens, Scalia, Kennedy, Souter, Thomas, RBG and Breyer. This trip, my eyes land first on the Chief, who I’m surprised to notice has aged appreciably in the intervening 15 years. It’s something far less noticeable on TV, and it’s not that he looks old by any stretch, it’s just somehow surprising to see the difference. I chuckle thinking about how much my appearance and life has changed in 15 years, too. Justice Thomas’s additional 15 show on him as well; he seems to fill up much less of his chair this time than I remember from before.
Before my brain can register time, my eyes flick over to where RBG sat in 2009; instead I take an interest in studying Kagan, Kavanaugh and Jackson now seated in that section of the bench. Kagan seems very businesslike and just ready to get down to it already. Kavanaugh, trust me on this, looks very different in person than he does on TV. Justice Jackson seems energetic and ready to engage. The only two that aren’t in my limited view are Justices Gorsuch and Barrett.
Back in the press alcove, we’re afraid to even move in our chairs because they make an awful sound as the wooden legs scrape loudly on the marble floor. We do not wish to be in any way disruptive. Just then, two people in our day press pass crew decide to get up and change chairs! Then despite stern words from Ms. Ella, one of them does it again! Silently and with the expression of a kid signaling “It wasn’t me!” I prepare for the roving reporter to be thrown out. Ms. Ella disappears and we expect her to come back with security, but she does not. The offender is highly admonished but left alone. I hope he’s now happy with his view.
With the court’s other business complete, the case is called and we are right off to the races. Relentless Inc. is heard first, by the full court. The argument went long, over two and a half hours, and the questions came fast and furious. Counsel for the petitioner answered as if he were trying to return serves coming across the net from both Williams sisters simultaneously. He was busy.
About halfway through, I realize there is something else quite different about this court from the one I visited 15 years earlier. There is definite collegiality between the members of this court and even occasionally the attorneys before it. The Justices playfully acknowledge each other’s hobby horse arguments from time to time, chuckles are allowed, including from the spectators and press. Even the attorneys venture into some light humorous charm. The feeling is downright convivial at times. I saw nothing like that during my previous visit.
Several characters really stick with me from this current visit. The Chief’s eyes dance and sparkle as the arguments get more and more complex. Beleaguered as he may be, one gets the sense he really loves this job.
Justice Alito is a lot of fun to watch as he listens. He’s what we used to call an active listener: he leans back in his chair, ever rocking, his eyes moving along the high and ornate ceiling. He is either nodding along in agreement or squinting his eyes and tilting his head if the argument isn’t quite landing squarely over him. When he settles on a point, question or counter-point, he leans quickly forward and jots notes. You can almost feel him weighing the merits of each point. There’s no doubt, he’s into it.
It turns out Justice Kavanah is a different type of active listener. He leans forward toward the presenter and almost seems to encourage them along in an “I’m rooting for you” kind of way. He also seems the most engaged with his colleagues during their opportunities for questions, often turning his whole body to look at and hear his fellow Justice’s questions. I caught myself thinking he’d be the one easiest to talk to, should you find yourself in the well arguing a case before them. He seemed a generous listener and participant throughout.
Justice Barrett’s approach was fascinating. She has a knack for making her questions sound like assistance rather than a challenge. She phrases them in such a way as to encourage the attorney to acknowledge a weakness in their argument and there is a “help me understand how that can be…” feel to her questions. It’s as if you and counsel are in the presence of a really good teacher. She’s patient. She’s guiding. Her direct thoughts could be at risk of getting lost or muted in the lovely presentation of them, but they do not. It seemed to me she tended to get the most thoughtful answers in return.
In a nutshell, on the day, I was surprised to hear that several Justices really seem to like the Chevron framework and found it a useful tool.
I was once again in awe of the majesty of the room. And found reaffirmation that these are serious people doing a serious job. I guess that can be hard to translate when overlayed with much of the media coverage of its outcomes. Or if one only focuses on the outcomes, or the court intrigue.
We’ll talk more here about the cases and my impressions of them. But let me wrap here for today and just share the idea with you that if you’re ever in DC, and it’s oral argument day, I highly encourage you to go. You might have to stand in line and wait a good while. You might only get a 10- or 15-minute seating. But I can guarantee you, you’ll be glad you did. There’s just something revitalizing and restorative in seeing that while some very important things ever evolve, they also somehow still manage to prove reliable. It just might give you some peace, in times such as these.
Until next time,
Mary Schuster
Chief Knowledge Officer
October Research, LLC