Stand-ins for Justice?

The original title for this post was The People’s Supreme Court? because it was triggered by an article in last week’s New York Times about the increased use by law firms of place-holders (paid stand-ins) for seats at the United States Supreme Court.  According to the article, “place holding is common at Congressional hearings and is on the rise at the Supreme Court, where seats for last month’s arguments went for as much as $6,000.”  An earlier piece, published around the time the same-sex marriage cases were argued, noted that the practice has its detractors, including former Congressman Barney Frank, whose proffered remedy is televised Supreme Court arguments.

I changed the title of this post after an incident on Friday.  While returning to my law school midday I passed a scraggly group picketing in front of a neighboring Marriott Hotel.  The signs said that the protesters were picketing because the Carpenters Union had a beef with the management.  As my very general description suggestions, I did not look at the signs too closely.  I was distracted because many of the protests were so drunk or drugged that they could not walk in a circle.  A colleague with whom I was walking informed me that some labor unions now hire homeless people to walk picket lines for them.  Surely the Union did not think that the picketing would be effective.  I was astonished that actual Union members were shirking their membership responsibilities, but did I have a right to be appalled?

Hiring stand-ins for pay is a very American institution.  During the Civil War affluent men like billionaire railroad magnate Andrew Carnegie and Grover Cleveland, later the 22nd and 24th President of the United States, upon recipient of their draft notice paid less fortune men to fight in their place.  This practice was not illegal, The 1863 Conscription (Enrollment) Act, “allowed an exemption from military service to those who either paid a ‘commutation fee of $300 or, like Carnegie, hired a substitute.”  Carnegie was reputed to have paid an Irish immigrant $850 to fight in his stead.  The Confederacy allegedly paid its substitutes even more.

Periodically we hear about paid stand-ins for tickets to popular concerts or even those post-Thanksgiving Super Friday early bird specials at the electronics store.  People with money paid those without money for enduring the wait and often adverse weather so that the wealthier people do not suffer.  Some might argue that this is the way capitalism works.  They would claim that the stand-ins are getting paid for their work and thus no exploitation occurs, it is a quid pro quo arrangement.  This is why a company like LineStanding.com, that offers stand-ins at $50 a head for Supreme Court and congressional hearings, can exist.

What is going on here is the monetization of people’s waiting time.  Arguably paying someone to stand-in for an obligation mandated by law, like military conscription, or perhaps jury duty, is more offensive than paying someone to be a place-holder in a line for concert tickets or early entry to Best Buy on Super Friday.  In the former case the payor is avoiding a responsibility of American citizenship whereas the latter case seems more like a pure business arrangement.  I also think that paying non-union members to picket on behalf of the union falls into the former category.  However, paying someone to stand-in line for seats to the United States Supreme Court, the ultimate People’s Court, seems to fall somewhere in between.

Is it important that this court, with approximately 70 seats for the public and 70-100 seats for lawyers admitted to the Supreme Court Bar, allows wealthier Americans and businesses to use their wealth to gain access the few seats in the Court while less affluent folks get shut out? Maybe Barney Frank is right, televised arguments (even if the broadcast is delayed) for high profile cases might even the score, at least a bit.  What do you think?

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