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A Standing Controversy at the Supreme Court

In the aftermath of the U.S. Supreme Court same-sex marriage arguments, a post by law professor Dale Carpenter on The Volokh Conspiracy blog has been making the rounds on Twitter and in the legal blogosphere. Carpenter discusses what he calls "The Real Standing Problem in the Marriage Cases," the phenomenon witnessed last week when those hoping for a seat inside the courtroom for the historic oral arguments waited in line for several cold days and nights -- or, in many cases, paid other individuals hundreds or even thousands of dollars to wait in their places. Carpenter describes his experience of being in line for the arguments and watching as people eventually arrived to relieve their paid line-sitters and, in some instances, invited their friends to join them, pushing back even more people who had been waiting all night.

In a compelling commentary in favor of allowing cameras in the Supreme Court, The National Law Journal's veteran Supreme Court correspondent Tony Mauro described the line outside the court before the arguments as "more befitting of a music hall or an Apple store on the eve of the release of a new iPhone." He argues that, "The notion that spectators have to camp out or spend money to see a public institution do public business is offensive. It is the direct result of the court's arrogant and stubborn refusal to allow cameras to record and broadcast its proceedings."

Mauro also wrote a piece on the "more literal standing issue" for the NLJ's Supreme Court Brief, quoting Carpenter and other attorneys who were disturbed by the situation at last week's arguments. Some argued that using paid stand-ins in the line for the general public was one thing, but paying someone to hold a place in the separate line for members of the Supreme Court bar was more "unseemly," in the words of Alan Morrison, associate dean of The George Washington University Law School. After waiting in that bar-members line starting at 2:15 a.m., only to be pushed back by lawyers who jumped in ahead with their companions hours later, Carpenter missed out on a seat inside the courtroom for the DOMA arguments last Wednesday.

In a timely post published on April 1st, Rick Hasen of the Election Law Blog offered a tongue-in-cheek solution in the form of a faux U.S. Supreme Court press release announcing two new policies for high-profile cases at the high court. Under one of the rules, offenders "will be sent to the Chief Justice's office by the Supreme Court police for a stern talking-to. Parents of line cutters may be called." The other rule provides for the dissemination of wristbands "generally following procedures for the distribution of Bruce Springsteen floor admission" and the creation of a new "pit area" for Supreme Court oral arguments.

"The Court does not plan on changing its policy barring the use of cameras at argument," the supposed press release concludes. Even on April Fool's' Day.

For more on the court's real-life policy regarding the bar line, and lawyers' response to the policy, see "Tough standing issues in an exclusive line for lawyers" [subscriber-access, Supreme Court Brief].

Posted by Laurel Newby on April 2, 2013 at 03:16 PM | Permalink | Comments (0)

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