89. Nine Voices

Sports can be a game of inches. Travel can be a game of minutes. And this morning a few seconds made all the difference. Today are Oral Arguments at the Supreme Court. The deadline for public online lottery tickets was three weeks ago. But if I’m fortunate I can wait in line outside the Supreme Court on East Capitol Street in 12 degree weather and hope I’m one of the first fifty. Court starts at 10am and I should be there before 8am. To achieve this I must get up and leave the house by 6:30 to walk to the bus stop by Calvin Coolidge High School. I walk fast over the salted sidewalks, and still miss the bus. I wait another 20 minutes. It feels like 8 degrees. How would this Baja boy know that? My app tells me so if I’m brave enough to take my gloves off and look. Finally a bus. The clock is ticking. 

Good news, I arrive at the Metro rail station just in time for the next train to Union Station. I arrive downtown by 7:30 and have a decision to make. Do I start walking now, or get some coffee and banana bread for the only nourishment till afternoon. I slow the game down. Let it be. Use common sense, take care of myself. Whatever happens is meant to be. My job is to show up. I can’t control the results. I take a short break before braving the cold and walk towards the East side of the Capitol. You can’t miss the Supreme Court’s towering presence. I see some heads bob up and down over the side street landscape. That’s it, but how many? It’s almost 8am and the line is long. I join a young man from North Dakota. This must be his Summer vacation. Within a minute the line keeps growing behind me. Are the Fates on my side?

A police officer walks out with purple tickets in his hand. The line starts moving. I’m number 40. After a two hour ordeal to get here the line cuts off at only ten people behind me. There may be a separation of Church and State, but the gods are with me and I’m taking them inside. Security checkpoint is first. We’re told no food allowed. Oh No! My warm banana walnut bread is still in my pocket. I start stuffing it in my mouth. The guard sees me and tells me to wait outside the door. Even a full mouth isn’t allowed through security. I swallow and place all my valuables on the moving belt. Inside we’re led up to the Great Hall and instructed once again of the protocols. We have to put our jackets and electronics in lockers. If we are a disturbance in any way, we will be arrested and spend the night in a DC jail block. Even though I'm with strangers now, he reminds us that those in jail will be stranger still.

A second security check. All I have is my wallet and pen and paper. No photos nor video inside. But you can draw. I’ll try my hand and maybe submit it to the Wall Street Journal as a stringer reporter. We’re seated on chairs in the very back. There’s only five rows of wooden benches in front of us, then a well of lawyers, then the high bench itself with nine leather chairs in front of four massive marble columns. All accented with heavy red curtains to give a sense of gravitas.

I know enough to ask an aide for an audio assist, commonly used for theater and performance events. She says yes, but will have to move me off the black marble floor onto the carpet because it will work better. Lucky me. I’m moved from the left field foul line to center field with a view straight down onto the Chief Justice. A better seat. And a better chance of catching a home run ball if someone hits it out of the park. The gods are definitely with me. 

“Hear yea! Hear yea! All rise . . .”  The Court’s in session. Play ball. Thank God I had coffee and walnut banana bread earlier because I’m here for two and a half hours, the normal length of a game, but no popcorn.

I was intrigued by the process. First of all, none of the Judges judged. At this stage all they did was to ask questions to force the lawyers for counsel to clarify the arguments. People may guess a specific judge’s opinions based on their questions, but you will lose money if you bet on those assumptions. Although I’m aware that various Justices have political leanings, I was surprised that I was given little clue as to their politics based on their line of questioning today.

Chief Justice Roberts barely spoke. I was shocked. The Chief was quiet. At most, Roberts would ask by name if any of the Associate Justices had more questions. Was his silence due to his personality or role as Chief?  Or both? I don’t know.

Clarence Thomas, now on the Court for 33 years, was famous for not speaking at all in his early tenure. He believes he can glean all he needs to know by reading the briefs and documents laying out the issues. Today he asked several short but to the point questions. He would lean back in his chair, sometimes with his hand over his face and just listen. Since their chairs can recline backwards, sometimes he would almost disappear. Personal disclaimer: I loved Justice Thomas’ book and movie “Son of My Grandfather.” An amazing personal story.

For me, Justice Alito was the most intriguing. I know nothing about him. But he was at times the most engaged and spoke in language that a common person would understand. In the second case of insurance and investment liability by a university’s retirement fund, he asked the counsel how many such cases their law firm had brought against universities . . . about twenty. His question shockingly was not to the elements of the case, but inferring the law firm was an “ambulance chaser,” making money and a reputation on this single issue. To my simple mind he was the most practical.

Justice Sotomayor pleasantly surprised me with her sharp wit and intensity. She also was very engaged. Even brought a few laughs. This is in contrast to her physical health. She has diabetes and not well. Some had encouraged her to retire under the previous Administration. When I saw her at the Inauguration she walked in slumped over and not strongly upright. But her mind is as sharp as can be and stands in sharp contrast to her physical health.

Justice Ketanji Brown Jackson is the most junior member of the Court. Behind closed doors, when in Conference, the youngest member is responsible to take notes, be the recorder secretary, answer the door and so on. Until a new member arrives. I was surprised that she spoke quite a lot once the proceedings got under way. She definitely was not shy about being the “rookie” on the team.

Brett Kavanaugh was always leaning in from his chair. Very engaged, like Alito, except he did not recline backwards. Also practical to me. He gave everyone a reminder in the first case that a police officer has a split second to make a life and death decision and did not have the luxury of an hour and half debate like they were having. He represented that thread of tension between the practical versus theoretical, or real versus ideal, a basic question on the scales of justice.

Elena Kagan spoke firmly, but did not have much of a presence today. My bias of size does factor in. Both she and Roberts tend to disappear in their high-backed seats. Coupled with making fewer comments, I have little to describe her. But Justice Thomas didn’t speak for years. How are the Justices in conference when they debate among themselves? That is probably a very different scene than the one before the public.

Neil Gorsuch, also quieter, became very engaged in the second issue over contract law. He was the only one that referred to his past experience as a lawyer or judge in relation to the current issue. It was a reminder that these Justices had full lives before the Supreme Court, and in fact were appointed because of that professional and life experience. This sounds silly to admit, but he was likable, with a “Father Knows Best” charm. Someone I’d trust or confide in. Yes, I did say that.

Amy Coney Barrett spoke more in the first case. Midst all the deeper voices both male and female, Barrett jumps out as sounding the youngest and freshest. She also was more engaged with the “use of force” issue and quiet on the "retirement/investment plan.” These are just external descriptions and are not equivalent to the depth of thinking capable by each independent Justice. What happens in public is the tip of the iceberg. Not asking a question does not mean a lack of understanding. Maybe quite the opposite. On a personal note, Amy Coney Barrett is the first mother of school age children (ranging from 6-17) to sit on the Court. She has seven children, two of whom are adopted from Haiti and the youngest with Downs Syndrome.

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So what were the two cases on the docket. The first was about the use of deadly force by a policeman who jumped onto a car that’s accelerating trying to evade arrest and the driver was shot dead. Unlike TV drama, the Supreme Court is not there to assign guilt, but reviews the decisions of lower courts if they followed protocol. Since police have indemnification, protection from lawsuits, the city is protecting the officer in a civil case brought by the victim’s family. The lower circuit court made its decision based on the “moment of danger” - what happened in those few seconds that would cause the officer to be threatened and defend himself. The other side argued that you should allow evidence from the “totality of circumstances” leading up to the fatal incident. Did the officer’s behavior manufacture the danger?

The second case involved a Retirement/Investment Plan by a University and if the fees/costs were unreasonably high and/or self serving to benefit the university. This was obviously more boring. Two thirds of the public left, maybe for lunch. But my coffee and walnut banana bread still had legs. The issue was that just claiming costs are too high is not the same as proving it. The plaintiff never compared nor showed that other similar plans were higher. Having a grievance is not sufficient. You have to show injury. 

Both these issues reminded me of the Washington Capitals NHL hockey game I saw Saturday night at Capital One Arena. Keeping your eye on the puck is not easy. Sometimes you look at the players to see where the puck went. The same is true at the Supreme Court. Keeping one’s mind on the key idea is not easy. And following the strategy of the arguments was at times confusing. Often I wouldn’t know who is arguing for what side, it seemed so convoluted, or intentionally deceptive. In the first issue of “deadly force” at least the puck was an identifiable color. In the second issue on “retirement investment funds” the puck was transparent and harder to track because it became more of a conceptual accounting maneuver than emotional life and death.

Finally the gavel falls. All stand. Court is dismissed. I was not only fortunate to get into the Court today, but this is their last public session until February 21, one month from now. For me this ends exactly where it should, in the Supreme Court Cafe, the best kept secret. Most everyone left the building to spend their per diem on lunch. I stayed and had chicken soup and a cheese steak sandwich with Provolone, grilled and hot. Perfect end to a day that started at 12 degrees.