May it Please the Court…
It’s 6:45 in the morning, about 48 degrees, and I’ve already been in line two hours. I originally planned to be at the Court around 7, but a good friend advised me to camp out the night before. I wasn’t willing to sleep outside but decided about 4:30 would be a safe time. A cursory count on my arrival pegged my place in line somewhere in the 60s. If the rumor was accurate that they let in only 50 from the general public line, I would have a lot of explaining to do upon my return.
I’ve come to the steps of the Supreme Court of the United States, affectionately called SCOTUS, to “participate” in the oral arguments of the case Janus v. AFSCME. In January, JMI prepared and submitted a friend of the court (amicus) brief articulating our positions on why Mark Janus, a state employee from Illinois, should not be forced to pay money to an organization (a public-sector union) with which he fundamentally disagrees, all as a requirement of holding a public-sector job. On the surface, it should be clear cut. However, ruling for Mr. Janus would require the Court to overturn a prior SCOTUS ruling and 40 years of resulting policy. That original case – Abood v. Detroit Board of Education – set the stage for public-sector unions to compel (force) employees to support their efforts, regardless of the employees’ wishes.
The path for Mark Janus was set forth by two individuals more than three years ago. One is Rebecca Friedrichs – a teacher from California who fought her union, the California Teachers Association, in 2015. The second is Associate Justice Antonin Scalia, whose sudden passing in 2015 meant that the Friedrichs case was decided in a 4-4 tie. The 2016 election, and the nomination of Neil Gorsuch to the Supreme Court, meant that a full slate of Justices would hear the Janus case and ultimately decide on the battle Rebecca Friedrichs began years prior.
The wind is picking up and I’m cursing my decision to not pack my top coat. The weather report wasn’t quite accurate, and the chill is biting. Trying to pass the time, I take out the selfie stick I purchased solely for this event and begin my first “man on the street” recording for JMI’s social media. The line stretches around the block already, and it’s not even light out yet. Three attempts later, I decide that I have a face for radio. As soon as I’m done, a few of my line mates ask who I am with and what side I’m on. I was dreading this moment, figuring that in the swamp I’d be “behind enemy lines.” Sure enough, I mention I am with a public policy think tank from Florida and we submitted an amicus brief in support of the plaintiff, and the mood immediately sours. I ask the originally-friendly young lady in front of me who she’s with. “I’m a union organizer” is the terse reply I receive. I try to smile in response, but It didn’t get better from there.
While attending orals arguments has been on my nerd bucket list for years, I am also there to be a part of the supporting team for Mark Janus. A rally on behalf of the plaintiffs has been in the works for weeks, and the crowds out in front of SCOTUS have staked their spots since the night before. Rallies are common in major cases at the Court, and this one is shaping up to be bigger than major. I’m seeing people from at least 20 different unions (judging from their shirts and jackets) showing up to support AFSCME (the union named in the case – the Association of State, County and Municipal Employees). They look a bit upset – not certain if it’s because of the case or the temperature. Regardless, they look like they’re collectively itching for a fight. Discretion being the better part of valor, I put the selfie stick away for a bit. On the side of the rally for Mark Janus is a group of organizations that have been fighting for worker choice and free speech for at least 25 years. They appear at least a shade happier, and my preliminary guess is that their ebullience is largely a result of two words – Neil Gorsuch. While nobody wants to make predictions, it’s clear that they’re expecting victory.
It’s almost 8:00, and it actually feels colder than when I arrived. My mom likes to say that God has a sense of humor, and I’m beginning to believe that. A small group of young attorneys from the Department of Justice in line with me decides to make a Starbucks run, and they graciously offer to get me a coffee. I return the favor by paying for all their coffees, along with one for my new union-organizing friend. She accepts the gesture, but figures I have an ulterior motive – she’s not buying my friendly nature. This is confirmed when a sweet older lady asks why there is such a crowd here to support the plaintiff. “I mean, why would anyone be here to support this guy?” I don’t know if it’s a loaded question or she was genuinely curious, but before I could even open my mouth the union-organizer gives her most of the Left’s talking points like she’s delivered them for years. “They’re all part of the Koch brothers network – the Kochtopus. They’re well-funded and they come from all over and pay people to come to rallies, and for the most part none of them have any clue what they’re even attending for.” Bite. Tongue. Bite. Tongue. Ten silent deep breaths. I won’t win this argument. I’m outgunned and overwhelmed by opponents. Bite. Tongue.
The venti red eye helps with the chill from the weather, but not from the chill in the attitude. Seeing friends and their smiling faces helps immeasurably. I’m not completely surrounded, just mildly under siege. Union-organizer lets me know her true feelings with the follow up, “Thanks for the coffee, so what do you do when you’re not crushing democracy?”
When do they let us in?
The crowd continues to swell, especially in the rally spot in front of the SCOTUS steps. From the looks of things, it’s apparent that both sides are seeking to leverage one another’s messaging. Pro-union attendees are hoisting signs saying, “We Support Freedom” as those in the pro-Janus crowd raise placards saying, “Stand with Workers.” My first thought is that if I were an uninformed tourist just passing by, I’d think that all these people were protesting together. It’s getting rowdy – someone must have plugged an iPod into the podium and mic setup, because out of nowhere Taylor Swift is blaring. Personally, I’d be willing to join the opposition if we can ditch Ms. Swift. But from the looks of the crowd, I wouldn’t get any takers. It’s then that I see, in the flesh, Rebecca Friedrichs herself. She walks right past me with her son, and much to my surprise actually recognizes me from State Policy Network events the past two years. She’s full of energy, always smiling, and in this crowd a total rock star. I yank out my selfie stick and manage to squeeze in a quick interview with the original SCOTUS plaintiff. My line mates sneer from the peanut gallery. I smile on the inside.
At roughly 9:00 in the morning, a pleasant-looking gentleman sporting Capitol Police gear and a large tactical rifle begins handing out yellow cards to those at the front of the line. As those happy campers move up the steps of the Court toward the public entrance, the anxiety begins to build. Those of us in my area of the line don’t know how many tickets are left, and we can see the stack dwindle fast. We move ahead, so close, yet so far away. The line stops, and our hearts drop. Did I really just wait in line, outside in the cold, for more than four hours and then lose out because I should have shown up 15 minutes earlier? Please don’t make this be what I have to tell our CEO. I’m hearing muffled rumors of an extra 50 seats, or an extra 15, or letting some more people in for rotating periods of five minutes. I need an answer. This is anti-American.
Fifteen more minutes of suspense and anxiety, and the armor-clad gentleman comes back – with five more yellow tickets. This is just abject cruelty. We’re on the steps of the building that has shaped the very definition of the 8th amendment, and they’re violating it right here. I begin to process through the five stages, reconciling with the fact that I am most likely at best going to be let in for a couple of minutes and shuttled through like a sheep in a herd.
I’m moving between the bargaining stage and the depression stage about 30 minutes later when I see, like a savior come to deliver me from this death and anguish, my armor-clad knight clutching a handful of yellow tickets. He begins handing them out, and 13 lucky people later, I received ticket 68 to attend oral arguments in the case Janus v. AFSCME. As I slowly walk past the rallying crowd and up the steps, I try to at least take in a bit of the moment. I stare at my ticket and look back to see only a few other people behind me. A total of 75 folks in line received tickets. I say a quiet prayer of thanks to God for not hitting the snooze button at 3:45 this morning.
Through one security station and a metal detector, we are ushered up a set of stairs and provided with instructions. No electronic equipment of any kind is allowed inside the courtroom. Attendees are expected to maintain complete decorum, or we’ll be escorted out. Something about spending a night in jail but, at this point, I’m so much in a state of awe that I am barely able to listen. We are then led through the main corridor of the Court, complete with busts of prior Justices and dripping in history, into a room providing lockers to store belongings, and I realize that I may end up being completely undone by my lack of a quarter. A pleasant gentleman assisted with a 25-cent donation to the cause, allowing me to lock up my phone, power bank, and selfie stick (wasn’t taking any chances). We’re then ushered through a second metal detector, patted down, and situated in front of a massive set of doors, which lead directly into the Courtroom. Doors opening, the sight of massive thick red curtains immediately signals the passing through the threshold into something completely foreign to me. This isn’t jury duty, people.
The Courtroom gallery itself is divided into two sections. The back section of the gallery is for the general public. The front portion is for the press, Supreme Court Bar-admitted attorneys, and each sides’ counsel. We are walked to the front of the public viewing section, and to the side, where they have set up extra chairs to accommodate a larger audience. The view is absolutely superb – about ten rows back and a slight angle. We’re led in just as the Justices are taking their seats and arguments are set to commence. I sit down, angle myself to the bench and begin taking in the sight of Justices Kagan, Alito, Ginsburg, Kennedy, Roberts, Thomas, Breyer, Sotomayor, and Gorsuch – all right there approximately 20 feet from me. Counsel for the Plaintiff, Bill Messenger of the National Right to Work Foundation, steps to the podium and utters five words I’ve been waiting to hear in person for decades:
“May it please the Court…”
And for the next 64 minutes, I get to witness the sharpest legal minds in the world jostle over the complexities of a case that will impact tens of millions of Americans in 22 states. And it didn’t disappoint.