WASHINGTON WATCH KATHRYN LEE
Camping on the Courthouse Steps Can you name the nine Supreme Court justices? On the first day of my constitutional law class, my students typically can name no more than five of the folks who sit on the most powerful court in the world. This leads into a discussion about the power of judicial review, the judicial process itself, and the seeming paradox that in a democracy nine unelected, life-tenured officials (and just five if that is how the Court splits on a decision) wield such power. Last semester some of my students observed in person the nine justices wrestle with a potentially important First Amendment case. I doubt they will ever forget the names of the justices they saw that day or the issues debated. The class had selected Christian Legal Society (CLS) v. Martinez to use in our class simulation. This case posed fascinating questions. The CLS chapter at Hastings College of Law had been refused official recognition by the law school because CLS does not permit those who engage in homosexual conduct to be either voting members or officers. Hastings has a nondiscrimination policy which registered student organizations (RSOs) must follow to receive certain benefits. In that policy, one of the bases on which an RSO cannot discriminate is sexual orientation. The case touched upon various First Amendment rights — free exercise, speech, and expressive association — as well as academic freedom. Just the type of case to rev up student interest. For the simulation, nine students were assigned the roles of the justices and four students represented the CLS and Hastings. The student attorneys presented their arguments, with the student
justices asking them questions crafted to reflect the perspectives of individual justices. The justices then gathered in conference, and the final vote was 5-4 in favor of CLS. It was obvious that the simulation had engaged the students’ interest in a way mere discussion of cases had not. I asked if they wanted to attend the actual oral argument in the case scheduled for April 19, warning that it would mean camping out overnight because it was a high-profile case and only 50 tickets are handed out to the general public. Nine of them jumped at the chance. At noon on Sunday, April 18, we arrived at the Supreme Court with sleeping bags, camping chairs, iPods, food, and drink in hand, and claimed our spot first in line. At 6:00 p.m. students from the CLS chapter at Georgetown Law School joined the line. Our campout soon turned into an endurance test. By midnight, the temperature dropped to the mid-30s with a brisk wind. At 1:30 a.m., the lawn sprinklers came on, showering us with cold water! At 2:00 a.m., another set of sprinklers sent us scrambling.At 6:00 a.m., a Supreme Court police officer got everybody up (the line now snaked around the block) and said tickets would be handed out as early as 7:00 a.m. The long wait was well worth it. Despite the politics of Supreme Court appointments, the judicial process does remain distinct from the political process. Whereas the political process demands and expects elected officials to represent the views of constituents, judges, especially appellate judges, follow different standards and criteria for decisionmaking. Oral argument is more than just a ritual. Justices have read the briefs and come with questions for the attorneys, each of whom has a half-hour to state his or her case. The justices use their questions to signal to other justices their points of view or to probe the issues at hand. My hunch is that the attorney for PRISM 2 0 1 0
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CLS was not expecting to be quickly interrupted by Justice Anthony Kennedy who, frustrated with the confusion about the facts, asked abruptly, “What is the case we have here?” Other justices also asked questions about the exact facts in the case. How had Hastings actually treated the CLS? CLS, after all, had been permitted to meet on campus. How had Hastings treated other groups with membership criteria that seemed to conflict with the law school’s antidiscrimination policy? How far can a public university go in trying to promote nondiscrimination so as not to intrude on a student group’s right to define itself as it wants? At this writing, the Court has not rendered its decision. Given that the justices appeared frustrated as to the exact facts in the case, it could be that the Court might send it back for further development of the facts. Whatever the Court decides, the students experienced the judicial process at work, and, in particular, the Supreme Court as it tries to balance various interests in a pluralistic society. Earlier, in the classroom, some students found themselves in roles which put them at odds with their personal opinions about the case. As Christians, some argued for the right of CLS to define its membership as it wanted and still have access to the full panoply of benefits accorded officially recognized groups at Hastings; others argued that Christians should not expect public institutions to accommodate religious beliefs when the university has taken a nondiscrimination position. The students got a chance to witness firsthand that we ask the Supreme Court to resolve some of the most difficult questions we wrestle with as a society. + Kathryn Lee chairs the department of political science at Eastern University, St. Davids, Pa. She is active in the New Sanctuary Movement in Philadelphia and belongs to the Pennsylvania Immigration and Citizenship Council.