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On WNYC today to discuss line sitters and the Supreme Court

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I'll be on WYNC today from 9:30 to 9:40 am to discuss the practice of hiring line-sitters to attend Supreme Court arguments and other court and federal hearings.

A Jada Smith piece discusses the decades-old practice of paid line-sitters holding places in line for the fifty seats open to the public for Supreme Court hearings.

Adam Liptak tweets that the idea of seats going to the highest bidder violates the concept of "Equal Justice Under Law." But just because the Supreme Court doesn't charge for seats doesn't mean that the seats aren't going to the highest bidder: the "first-come, first-serve" rule (which doesn't apply to journalists like Liptak, who get a guaranteed front-row seat in press gallery) just charges by the bidders with the most time, rather than the most money: over 24 hours for the most popular arguments. It's hardly a surprise that the result is that there's room for a deal, since one can pay people for their time. It's not free for someone with a job to sit in line for days, especially if they don't live in Washington to begin with. (If the Supreme Court simply gave out 50 tickets for free to each argument, one would quickly see those tickets on Ebay or Craigslist or StubHub.)

Now, one can complain that line-sitting companies are capturing rents from scarcity that would be better served in the judicial coffers: at $50/hour for a line sitting company, it appears that this argument could have raised $100,000 or more for the courts if the Supreme Court had simply sold tickets.

It's worth noting that the Supreme Court is already the most open of the branches. Unlike the legislative and executive branches, when the Supreme Court makes a decision, it is immediately public, and when it's precedential, they explain their reasoning. Lobbyists have secret conversations with legislators and regulators, but lawyers' arguments to the Supreme Court are constrained by public briefing. The argument may not be contemporaneously available to the entire public, but the oral argument is the least important part of the process and is, in any event, available in transcript form same day, and audio recording not much later. Where's the real harm?

As "outrages" go, let's take a look at PACER, where the judiciary overcharges by over $100 million over costs for documents available in public court dockets and provided over the Internet—and that was before PACER raised its prices 25% this year. (For a non-profit like the Center for Class Action Fairness, PACER charges are a non-trivial part of our annual spending.) And don't even get me started about the waste of money of over a hundred separately designed and programmed and inconsistent ECF filing systems for each of the courts.

1 Comment

Given the thoroughly elitist process of press credentialing at the Supreme Court, Liptak's complaint is ironic in the extreme.

The Supreme Court may be the most open of the three branches in the ways you mention, but we shouldn't kid ourselves by comparing it only to Congress and the Executive. It has a long way to improve in terms of accessibility (certiorari rates and raw number of cases), ease of participation (http://www.aarongreenspan.com/writing/essay.html?id=87), eliminating insider benefits (press corp, SCOTUS bar members)(why should a bar member get a viewing seat ahead (temporally and physically too) of a member of the general public?), not to even mention the cameras in the Court issue.

There are likely state judiciaries that are much better than the Supreme Court in each of these respects.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.