BRIGHT IDEAS: Mike Sacks on Supreme Court Reporting from the Front Lines

Sometime before commencement of the Supreme Court’s 2009 term, Mike Sacks, a third-year law student at Georgetown University, had an idea.  Taking advantage of his close living proximity to the Court, Mike would attempt to be the first one in line for all of the major oral arguments for the Court’s term. In addition, he would interview people in line about why they were there and their impressions of the Court and the case to be argued. And, most importantly, he would start a blog to report on his experiences. Mike has been engaging in legal journalism from a unique vantage point: from the front lines — or, from the “front of the line” — of the Supreme Court. Mike’s bright idea has resulted in a successful Supreme Court blog, First One @ One First.  [Recall Mike’s mission to be the “first one” in line at “One First” Street NE (the Court’s address).] Click HERE for the blog’s mission statement. Mike’s experiences and blogging have been featured in the New York Times (see HERE as well), National Public Radio, the ABA Journal, the Washington Post’s WhoRunsGov/PostPolitics, The Atlantic, Slate, Volokh Conspiracy, Above the Law, and other outlets.

Mike’s blogging has also launched the beginning of what is likely to be a successful career in legal journalism. In fact, Mike wrote the cover story for last week’s issue of the Christian Science Monitor.  He has also been blogging at some premier legal blogs. Below, Mike answers some of my questions about his reporting experiences, his impressions of the Court’s term, and his perspective on the Supreme Court in general.

1.  Could you talk briefly about how and why you came up with this idea of what might be called “legal journalism from the front lines?”

Because Concurring Opinions is more of an academic blog, I’ll start with F1@1F’s intellectual underpinnings.  As the Citizens United rehearing approached last September, I noticed that the Roberts Court’s dockets and decisions from OT06 through OT08 appeared to track the surrounding political climate.  Once so boldly conservative on all the hot buttons when operating under the cover of Republican-controlled Legislative and Executive branches, the Roberts Court–now operating alongside Democratic political branches–appeared to have shaped an exceedingly modest OT09 docket so to have enough political capital to spend on Citizens United without irreparably damaging the Court’s institutional legitimacy.

I wanted to test my hypothesis that the Roberts Court was not only sensitive, but also responsive, to its surrounding political climate. Of course, I could have done this by reading transcripts of oral argument and digging through the decisions once released.  But I lived four blocks from the Court and had already had a blast camping out for Citizens United / Sotomayor’s first day.  When I noticed I had no morning classes for the Spring Term on the Court’s argument days, I really decided to make this an in-the-flesh project.

But I wouldn’t have followed through so thoroughly had I not had vocational motivations as well.  I entered law school very interested in constitutional law, politics, and media.  After my first year, I interned for Nina Totenberg at NPR.  That was the summer of Heller and Boumediene.  I so enjoyed that experience that I took a semester off to work at ABC News’s Law & Justice Unit in New York, where I covered the legal aspects of the 2008 Presidential Election and the Wall Street meltdown.  Once back at school and on the job market, I thought there was no better way to make myself attractive to both legal and media employers than to build a body of work on the Supreme Court beat.

Nevertheless, just another person writing about the Court out in the ether wouldn’t have been too compelling.  But getting out in line at disturbingly early hours and telling the tales of those crazy enough to join me – now that’s something no one had ever done. Indeed, if the Court is responsive to the political climate, and if public opinion on any given case is the “weather” that shapes our broader climate, then I figured those who cared enough to get out in line on bitterly cold mornings well before the sun came up would make a very good representative sample for the people who shape public opinion.  By asking these folk, “why are you here?”, I would be committing interesting journalism while also informing my research about the Roberts Court.

2.   What unique insights have your experiences over the past term given you about the Supreme Court and the justices?

Chief Justice Roberts is a superb political strategist.  He’s steering a right-of-center Court through a left-of-center government and knows which storms his ship can handle and which it cannot.  I wrote prospectively about this back in December, Jeff Rosen of The New Republic wrote about it in February, and Adam Liptak of the New York Times wrote about it just the other day.

What we’ve seen this year is the birth of John Roberts’ Court.  It will always, to a degree, remain the Anthony Kennedy Court as well, until he leaves the bench or one of the conservatives is replaced by a liberal.  But Roberts took control this year in the Court’s decisionmaking that we haven’t yet seen.  The next interesting thing to look out for is what issues beyond Miranda, guns, arbitration, and campaign finance the Chief believes are ripe for conservative gains as the Congress and the Presidency remain in Democratic hands.

3.  What have you learned as a result of your interviews with spectators in line for Supreme Court oral arguments?

I’ve learned that most attendees are lawyers, law students, or aspiring law students, but the significant amount of non-law types who do show up are deeply passionate about the issue before the Court and our American system of government.  Invariably, every line-wait was an inspiring and collaborative civics lesson, often led not by the lawyers, but by the laypeople.  And sometimes even a vagrant.

I’ve also learned that people are capable of talking about contentious legal/political issues for hours without once feeling bad blood towards each other.  If only cable news knew!

4.  What are your impressions of Supreme Court journalism and/or legal reporting more generally? Does having legal training give a reporter a particular advantage?

The Supreme Court press corps is really a wonderful group of men and women.  In some ways, they resemble the institution they cover: they are collegial, stunningly smart, and never seem to leave the beat once placed there!  That is not at all meant as a slight, either–if I ever got a gig as a SCOTUS reporter, I’d never leave.  Indeed, being around the reporters makes me think of Jake Barnes’s love of bullfighting from Hemingway’s The Sun Also Rises–the Court’s press corps really do possess that “aficion.”

As for legal training, I think it’s as important for a reporter as judging experience is for becoming a justice–which is to say it’s a good thing to have, but absolutely not necessary.  Nina Totenberg, for instance, never finished college, let alone went to law school.  But she’s been at the Court longer than any of the justices, even Justice Stevens, and has established a towering reputation for herself and a great rapport with the justices.  Adam Liptak, who only recently joined the SCOTUS corps when he replaced Linda Greenhouse last term, has a Yale Law degree and practiced for quite some time, and his work has been stellar from day one.  They, like their colleagues, all add their backgrounds to the beat and set an example for cubs like me scratching at the door.

Personally, from my days as a Nina Totintern, they have been nothing but hospitable.  I have never sensed any, “Oh God, Mike’s here again,” vibe from any of them.  In fact, since I started F1@1F, they’ve all been interested and supportive of my project, perhaps recognizing in me the same aficion that drives them.

Beyond the print and broadcast reporters, I do think there is room on the Internet for more colorful reporting on the Court.  Dahlia Lithwick is the gold standard for this style, and she’s given me a massive amount of encouragement.

5.  What do you think is the most valuable aspect of oral arguments from a justice’s point of view? In other words, what information are justices getting from oral argument that they otherwise would not have if there weren’t oral arguments?

Oral arguments are for the justices to explore holes left in the extensive briefing, push the limits of where their lines of logic may take them, and to speak with each other by proxy of their questions to the advocates.  This is not a new observation, but rather a strikingly obvious one for anyone who has gone to an oral argument.

Sometimes oral arguments do seem pointless–they’re a very short hour in which not too much gets thoroughly explored, while the justices already have read mounds and mounds of briefs covering every single angle on the case one could possibly imagine.  But even assuming oral arguments are simply for show and tradition–something I do not believe–they have symbolic worth.  Courts, including the Supreme Court, should conduct their business in public and give their parties every opportunity to plead their cases in the flesh.  If the hour the Court currently allots per argument is an arbitrary unit chosen for efficiency, given its earlier history of hearing cases over several days even when its docket was more than double in size, so be it.  And thankfully the Court has given no indication that it will close up shop on oral arguments as it closed up its front doors.

6.  After attending an oral argument, do you feel as if you know how the case will be decided? If so, what in particular about the oral argument gives you insight as to how the case will be decided?

Sometimes yes, sometimes no.  Justice Scalia in both McDonald v. City of Chicago and Doe v. Reed signaled quite clearly where he would stand, and in both instances, his position made clear which direction the Court would go as well.  On the other hand, Holder v. Humanitarian Law Project and Christian Legal Society v. Martinez presented a Court very much unsure of its direction, largely because Justice Kennedy did not stake a definite claim one way or the other.

7.  You wrote quite extensively about the McDonald case, which featured an attempt to use the Privileges and Immunities (PI) Clause of the 14th Amendment to apply the 2nd Amendment to the states. Why on earth would the lawyers attempt to use the PI clause instead of the Due Process Clause, which has been used to incorporate virtually every portion of the Bill of Rights to the states?

Alan Gura, the lawyer for Otis McDonald, is a libertarian backed by libertarians.  He wanted to use the PI Clause on principle–it is the originalist and textualist storehouse for substantive rights in the Fourteenth Amendment–but also for political ideology.  With the return of the PI Clause comes a possible return of the constitutional right to contract repudiated in 1937.  At oral argument, Justice Alito sniffed this out at oral argument, causing Gura to plainly admit that the right to contract was among the privileges or immunities originally contemplated by the Framers of the Fourteenth Amendment.

But the PI Clause wasn’t “the darling of the professoriate,” to use Justice Scalia’s words, just for libertarian reasons.  Liberals, too, wanted to place post-Griswold unenumerated rights on firmer constitutional footing in our age of originalist and textualist ascendency.

Accordingly, before Justice Scalia shot to hell the PI Clause gambit early in the oral arguments, many anticipated a “grand bargain” between the Court’s liberals and conservatives.  Scalia and Thomas had gone on record many times stating their antipathy to Substantive Due Process.  Meanwhile, the liberals may have believed the PI Clause would have better protected them against the conservatives’ unyielding attacks on Roe and Lawrence.  And Justice Kennedy, a solid pro-business vote for the right and the unlikely hero on social issues for the left, could have positioned himself, more than ever, the king of constitutionally-protected unenumerated rights, expanding his legacy beyond abortion and gay rights to a resurrection of a more restrained Lochner regime.

8.  Are there any decisions from this term that have surprised you?

Chief Justice Roberts’s position in Comstock, in which he fully sided with Breyer’s expansive Necessary & Proper Clause reading, surprised me.  At the same time, however, it was consistent with my theory of a Chief picking his battles and anticipating what’s on the horizon.  Federalism for him simply may not be as pivotal of an issue as it was for Chief Justice Rehnquist, and he could have felt it was time to put the revolution out to pasture.  Further, with the Affordable Care Act’s challenges coming towards the Court, Roberts may have sought to signal that he has no intention of leading the Court back to the other side of what I’ve called the “Roosevelt Rubicon.”

9.  Your Christian Science Monitor cover story talks about whether the Court “looks like America.” In this context, what are your thoughts on Pres. Obama’s nomination of Elena Kagan to the Supreme Court?

Kagan represents a sort of post-gender/post-religion narrative that complements Obama’s own post-racial narrative from his campaign.  Gender now seems to matter less for how it may impact the substance of the Court’s reasoning, but rather for the drive towards male/female parity on the bench.  And aside from some Jewish humor at her confirmation hearings, her religion seems a complete non-factor.

The most salient considerations of diversity upon Kagan’s nomination instead seemed to be educational and geographical diversity.  I suspect the next nominee will be from neither coast and not from the Ivy League, although Obama could probably get away with another Ivy Leaguer if he chose the first East or South Asian-American for the Court.

Beyond diversity, I think Obama missed a golden opportunity to kill off the post-Bork confirmation hearings malaise once and for all.  Had he chosen someone like Diane Wood, she could have answered forthrightly to all of the Republicans’ fire-breathing questions and stood up for her paper trail, and still gotten confirmed.  That would have proven that Bork’s rejection wasn’t because he substantively discussed a legal philosophy, but rather that he discussed his legal philosophy.

Nevertheless, Kagan does seem to be tailor-made not only for confirmation under our post-Bork conventional wisdom, but also for Obama’s own process-orientation.  Obama knew her and trusted her, perhaps even saw himself in a Democratic lifer with an instinct for consensus building.  In my mind, she would have made a great third nominee for Obama, when he wouldn’t have had as large of a majority in the Senate he now enjoys.

10.  Would you mind sharing your “trade secrets” for when spectators should get in line to see oral arguments for various types of cases?

I wrote a two-part column for Above the Law back in March laying out what I learned.  For any case, there are at least 50 seats reserved for the general public.  Given how long the line ultimately gets come 8am even the most boring cases, that’s not a lot at all.  The most important thing to know, then, before getting in line is how politically salient a particular morning’s cases may be.  I describe the three groups–“blockbusters,” “mid-majors,” and “dogs”–in the first ATL piece.

If it’s a “Blockbuster”–abortion, guns, god, gays, national security, affirmative action–be prepared to stay overnight, and even then twelve hours may not be enough.  My most epic fail this year came in late March at the oral argument for Christian Legal Society v. Martinez, one of this year’s blockbusters (though in any other year, it probably would have been a mid-major).  When I arrived for my overnight, the line was already more than thirty deep.  The first people in line got there nearly twenty-four hours early.  That means that even if you just wanted to squeak in at 50th, you probably needed to be there by midnight the night prior to argument.

What I did learn by the end of this term is that no matter how cold it may be, it is much easier to camp out the night than get up to leave your place at 2am.  That doesn’t mean I’d trade a warm bed for the cold concrete if I thought I didn’t have to get in line until 3am, but my two-hour outdoor catnaps on my overnights were more restful than whatever truncated indoor sleep I’d get before my early morning arrivals.

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