I've been following the blog First One at One First recreationally since March. Mike Sacks, the author, is a 3L at Georgetown, and he made it his mission to be first in line for all of the Court's politically salient oral arguments of 2010. I believe he was upstaged twice, but the idea was brilliant, and his dedication was rewarded with some great press coverage. It's difficult to predict just how early one should arrive in order to secure a seat in the Court. I believe only 50 tickets are distributed to the general public on the days of major arguments. When McDonald v. City of Chicago was argued back in early March, a number of people showed up as early as the afternoon before the case was set to be argued.
I figured that with Justice Stevens' departure and the announcement of McDonald and three other potentially historic opinions, I should take my place on the sidewalk of One First Street by 6 P.M. at the latest. I ended up getting there at 5, and I was all alone until Brian joined me just before 7 P.M. Mike Sacks rode up to One First not long after Brian arrived and promptly snapped a photo of his usurpers. Other campers trickled in slowly throughout the evening. I think there were 8 of us in between the hours of 12 and 5 A.M. One was a recent Georgetown Law graduate who specializes in space law, and another just finished his third year at Duke. Both are taking the bar exam in July. Mike really is an endless fount of wisdom. He's an incredible conversationalist, and he's exceptionally knowledgeable about the history of the Supreme Court and of American politics. His F11F project has enabled him to pick up on the mannerisms of the individuals who compose the Roberts Court as few have; very few of his predictions went unfulfilled on Monday. I really think he'll be one of the great SCOTUS analysts of the next generation.
Brian and I literally slept (or attempted to... it was more pro forma in my case) on the sidewalk in front of the Supreme Court. The group did its best to stay one step ahead of the sprinkler system, whose operations the veterans are usually able to predict with a reasonable degree of accuracy. More and more Court enthusiasts began to show up shortly after the metro opened at 5 A.M. The bathrooms in nearby Union Station were open all night, thank goodness. The Supreme Court police begin to distribute placeholders at 7 A.M., and both Dick Heller (of District of Columbia v. Heller fame) and Otis McDonald (whose case was decided today) showed up not long before then. I also saw Pete Williams of NBC recording a short clip outside the Court shortly before the distribution of tickets.
As I'm sure most of you know, the Senate Judiciary Committee hearings on Elena Kagan's Supreme Court nomination began today and should last all week. After our coveted #1 and 2 positions were finalized, Brian and I walked two blocks north to pick up same-day tickets for a seat at the hearings, which are being held at the Hart Senate Office Building. I relieved myself at Union Station and then walked back to the Court in plenty of time to prepare to line up again, this time for our entry inside. I saw Tom Goldstein (founder of scotusblog.com and a well-known appellate lawyer in D.C.) pass by with a box of bow ties for distribution in honor of Justice Stevens. Shortly after 9, William Suter, the Clerk of the Court, paid the lucky crowd a visit and said that we would be going inside shortly. After passing through security, we placed our items in lockers and waited in the Great Hall to allow VIPs (journalists, members of the Supreme Court bar, family members, etc.) priority in entering. Being #1 in line has its perks: once in the courtroom, only a marble column separated me from Jeffrey Toobin for nearly two hours. I also sat mere feet away from other SCOTUS correspondents including Joan Biskupic, Jan Crawford, Nina Totenberg, Pete Williams, and several others I didn't recognize.
I wish I had the time and energy to write more about today's announcement of opinions. McDonald, the one most people came to hear, was handed down first and written by Justice Alito. No one really expected that the 2nd Amendment wouldn't be incorporated today, but McDonald will undoubtedly be a huge part of Alito's legacy. Justice Breyer gave a long (and I mean LONG) synopsis of his dissent. I was struck that he and two others felt that supervening scholarship justified a reconsideration of the core holding of Heller, which was decided only two terms ago. Justice Ginsburg next announced the Court's opinion in Christian Legal Society v. Martinez. She was on the bench and read from her opinion despite the tragic passing of her husband yesterday. Justice Kennedy delivered the opinion of the Court in Bilski v. Kappos, a patent case I haven't found time to learn about, and Justice Stevens read from his concurrence. Chief Justice Roberts then delivered the last opinion of the term in Free Enterprise Fund and Beckstead & Watts, LLP v. Public Company Accounting Oversight Board, which I honestly find loads more interesting than the other three decided today, probably because I'm more familiar with it (we mooted the case in Dr. Schreckhise's class). Again, Justice Breyer read from his dissent. Mike's observation on his blog seems spot on: there's absolutely no doubt that Breyer is now the intellectual leader of the Court's "liberal bloc." His dissents seemed more aggressive and sardonic than usual. Chief Justice Roberts concluded the term by announcing the retirement of Frank Wagner, the Reporter of Decisions, and reading a letter he had written to Justice Stevens on behalf of all the other justices. Stevens responded in kind, and that's all she wrote.
I rode and walked home as quickly as I could, uploaded some photos, ate, showered, and put some nice clothes on for the nomination hearings. I went at just the right time--it's my understanding that groups are typically rotated in and out in 20-minute increments, but we were escorted in right after an extended break, and I was able to see Amy Klobuchar, Ted Kaufman, and Al Franken deliver their opening statements, John Kerry and Scott Brown formally introduce Kagan to the Committee, and the nominee herself make her opening remarks before the Committee adjourned for the day.
It's hard to communicate the day's excitement in a blog post driven by descriptions of events for the purpose of keeping friends and family apprised of my adventures, especially when the author has been awake for 35 hours, but I can't emphasize enough that today was unlike anything I've ever experienced. To have witnessed a Supreme Court term's final sitting (including the incorporation of one of the first ten Amendments), the retirement of a giant in the history of American law, and the Day One of a constitutionally prescribed rite of passage that will likely initiate another long and storied judicial career--all in the same day--is just plain silly for its utter implausibility. This is one of those days I'll never forget.