Impressions from attending a Supreme Court argument (Jan.2007)

Takeshi Akiba

Note: These are my personal observations and impressions of attending an oral argument.
For a more doctrinal review, see:
http://www.scotusblog.com/

http://www.scotusblog.com/movabletype/archives/2007/01/argument_recap_10.html


- It was my goal to attend a U.S. Supreme Court argument during my stay at DC.
I finally realized this goal on Jan.10,2007.

- Two cases, each for an hour, was to be heard, from 10am and 11am.
The cases were Davenport v. WEA and Washington v. WEA.

- I arrived in front of the Court at around 8:45am, and there was already a long line.
A large group of probably high school kids were there; apparently they had studied either
of the cases that were to be heard today.

- There was really no organization at the line.  I had read on the Court website
that there was going to be a line for people who wanted to stay through the entire
argument, and another for people who wanted to do a 3 minute viewing.  But today
there was only one line, so I had no idea in which capacity, if at all, I was
going to be able to get in.

- Although this winter has been unusually warm, today it was cold, and it seemed
that the Court was located in a place with particularly high winds.  We were
freezing and people were wondering why we couldn't wait inside...

- Officers began moving small groups of people inside for seating.  Apparently,
seating is very limited, and it looked like there was no chance that I would get in.
But remember, the line had both people who wanted seating and who only wanted a 
three-minute view.  I just chose to hang on and see what would happen.

- Because of frustration with lack of information, some people began to ask
officers individually what chance anyone had of getting in and when we would know.
People in line would ask those individuals in turn what the officers said.

- Anyhow, around 10:15, an officer finally announced she was going to separate
the line into two; one for those who wanted to sit in the second case, and another
for those who wanted a three-minute view.

- So, as it turns out, I was lucky, and I was suddenly the first-in-line for
those who wanted to sit in the second case.  I was more interested in the second
case to begin with.  The good part (or the bad part) is that I couldn't have planned
for this, because there was only one line for the entire day's argument when I
first arrived at the Court.

- About 10:45, we were allowed to go up the stairs and into the entrance of the court,
where we had an airport-type screening though with less tension or hassles.
People didn't bring much baggage, so the screening was easy and smooth. 
I had a briefcase, which I left with a clerk in the Coat room.

- Throughout this time, I was chatting with people in line.  Especially interesting
was a person who works for a libertarian foundation.  Of course he would
be interested in the second case.  The case involves an interesting twist in the role of
government, in that in this case the government is trying to justify a law that
purportedly protects the free speech rights of individual workers v. unions.
Free Speech has traditionally been asserted AGAINST government intrusion.  Now
the government is saying it wants to PROTECT free speech by law.

- From a libertarian point of view, there would be a dilemma.
Individual right to free speech is most important for them, but when the
government dictates by law which and whose speech is to be protected,
its implications on individual rights in other areas could be expansive.

- After passing security, we waited in front of the Court room door, where clerks
would let us in at the right timing.

- An official mentioned that he was actually surprised that people were not lined
up before dawn.  In major cases, particularly involving education, he said that
people would show up at midnight and camp overnight.

- 15 people, including myself, were allowed in past 11am.  The argument for the
second case had just started.


*Impressions from the argument*

- The philosphical significance of the second case I already mentioned above.
A Washington state law, passed by popular initiative, is being challenged.
The law would require labor unions to get affirmative consent from non-members
before using their money for campaigning in political elections.

- The context of this case is that every teacher has to pay a certain amount
of dues to the union, even if not a member.  Probably because they receive
residual benefit from union activities (such as wages and labor conditions)
even if not a member.

- So the question is of free speech on both sides.  Does the requirement that
unions need to get specific permission from each non-member burden the unions
to an extent that it infringes upon the union's free speech rights?  
Does the lack of such requirement infringe upon the free speech rights of
individual workers who did not want to support a particular cause that the
union was spending money on?

- The union's argument, I think, in the main, was that they provide an opt-out
procedure which is sufficient guarantee of the rights of non-members.

- Apparently some judges were of an opinion that if an opt-out measure was OK,
then an opt-in measure would of course be OK because it secures even more strongly
the rights of individual workers.

- The union's viewpoint will be that it's right to free speech is also important,
and that if the government is going to burden it by means of law, the burden had
to be minimal and justified by a compelling state interest.

- I think that the outcome of this case will depend on one's viewpoint on 

1) whose interest is paramount: the free speech rights of unions without undue
government regulation, or free speech rights of individual workers at the expense
of union strength?

2) who has the burden of proof: does the government have to prove that there
is a compelling state interest that justifies the restriction on unions,
or does the union have to prove that government regulation is an undue burden?


- What complicates this case, as in other cases that reach the Supreme Court,
is its effect on other cases:

1) One of the arguments that the union raised is that this law was a content-
based restriction on union speech on ballot initiatives.  The moment the Unions
chose to spend money on ballot initiatives, this law would kick in.
I wouldn't get into this, but there's a long-string of First Amendment cases
regarding laws that regulate a speech based on viewpoint (basically unconstitutional-
though a little murky when it gets to cases regarding advocacy of communism); or
based on subject matter (a university restriction on student speech regarding
religion had been held unconstitutional).

2) One justice raised the point that the issue of content-based discrimination
against speech on ballot initiatives had not been raised in the lower-court decision
and that this was pointed out by the court in a footnote to that decision.  He
asked whether this issue was open if the court were to remand this case to discuss
this matter.  Which caused a visible attention from the audience ("is he going
to remand the case?")

3) He also raised the point that if the Court were to admit
the distinction between laws regulating campaigns on ballot initiaives versus 
campaigns on candidates, its effect on other campaign finance laws, such as
that of Vermont, is unpredictable.


- It sounded like certain judges had already decided on the matter.  One said
something to the effect of "why require people to say no twice?"  He was
clearly in support of the Washington law.

- Justice Ginsburg seemed to be the person who had done the most amount of
homework.  She had details covered in her mind and effortlessly cited
briefs, lower court opinions, precedents, etc. in her questioning.
A very quiet, unassuming demeanor, but a great attitude.

- Justice Thomas seemed to be disinterested and passive.  No hint of what
he was thinking.

- Justice Alito appeared to be skeptical of the union's arguments for the
most part, but he was listening and did ask pointed questions.  He has this
playful, boyish look which makes you think that he could at any moment
blurt out a stinging joke- though he didn't.

- Chief Justice Roberts appeared to be making intetional effort to look neutral.
He didn't come out as having strong opinions, although many might suspect he does.

- All those points aside, it's clear that this law has an underlying political
motive.  Requiring opt-in procedures before unions could spend money on campaigns
is clearly an effort to limit the clout and effectiveness of unions in
election campaigns.  By default, such burdens would disadvantage the Democrats,
who rely heavily on union support.  One could recall that the California governor
also tried to limit the power of unions via popular initiatives that he
promoted (though he lost all of them).

- A lot of this political background is lost in Court room arguments, and it
seems a little hypocritic, in that judges clearly know the political implications,
though they couch it in legal arguments over constitutionality.

- Their political inclinations would of course come out in how they decide
upon the preliminary question I mentioned. of whose interest is paramount,
and who has the burden of proof.

- At the deepest, most subtle, long-term level, this case may have its place
in subjecting U.S. jurisprudence to the same debates had in the Lochner-era,
once again.  Back then, unions were criminalized as a conspiracy that violated
the rights of individuals to contract.  Only later did the U.S. polity decide
that individual rights to contract were arcane when it came to contracts
among employees and modern corporations.  Employees simply did not have clout
versus large, national corporations.  Unionism would supplement this lack
of power.  Ever since, few had thought that Lochner-era insistence on
individual rights of workers vis-a-vis unions would be revived.  Alas, that
may not be anymore.  Now there's the Washington statute trying to regulate
unions on behalf of the "free speech" rights of individual workers.

- By extension, once the focus is upon each and every individual as a worker
vis-a-vis unions, it would be difficult to continue justifying what labor unions
do purportedly on behalf of all workers.  There will always be at least a couple
of dissenting workers.  If any one of them could bring a lawsuit and obstruct
union activities, unionism may well be threatened of its existence.

- So in any number of ways: legal, in terms of effects on campaign finance laws;
political, in terms of effects on Democratic party strength; philosophical,
in terms of the role of government in free speech cases or the role of unions
within the framework of individual rights, this case would have a subtle, yet
long-term, sophisticated impact on U.S. jurisprudence.



Link:

Supreme Court of the United States