Good morning and welcome to a special edition of Prix Fixe Politics! At 11:30 PM Wednesday night, I hailed a cab to the second most important address in all of America – One First Street NE, Washington, DC. I arrived at the Supreme Court, not realizing how tense and dramatic the next twelve hours would get. I want you to relive Thursday with me – I hope it gives you a different perspective on this historic moment. With that, here is today’s special SCOTUS menu…
Appetizer: It was actually around 2:00 PM Wednesday that I first stopped by the Court to see if the mayhem had begun. No protestors, no supporters, no media in sight…and there were only 3 people in line at that point. It was less electric than an LA Clippers game in the 90’s and 00’s. The third woman in line was kind enough to inform me that the Court reserves about 60 spots for the general public on oral argument and opinion days. While she wouldn’t hold a place for me, she gave me her phone number and suggested I call her later in the evening to gauge the crowd. Sure enough, when I called her at 11:30 PM, she let me know the line had grown to roughly 40. So, in khakis and a button-down, with only a half-full bottle of water, I took a cab to the Court and got in line. If you didn’t recognize the building behind us, you could easily have mistaken the group for college freshmen on move-in day. The average age was 25 or 26 at most. They brought foam egg crates and yoga mats to sleep on, blankets and sleeping bags to sleep under. Some wore sandals and shorts, others wore suits and suspenders. Justice truly knows no dress code. There were over-eager undergraduates and case-citing law students, with some Masters in Public Health candidates sprinkled in. And even though all sides of the aisle were represented and the Capitol Building shone illuminated across the street, there wasn’t one political argument all night.
Main Course: By the time 5:00 AM rolled around, I learned that a lone Crystal Geyser water bottle does not make for a good pillow. People were stirring and the media circus was arriving. While the mood was still surprisingly relaxed at that time, 8:00 AM was another story. The Court security lined us up single-file and handed out a numbered gold card to each person. I got #36, and could breathe a quick sigh of relief that I’d make it into the courtroom. The guards moved us along 10 at a time, left, right, left, right. Walking up the first few stairs and heading to the side of the Court, I got a different feeling than I do when I enter the Capitol or White House. For me, at least, I didn’t feel the same sense of patriotism, but more of a feeling of permeating purpose. Finally moving toward and into the Court reminded me how monumental a moment this could be in the course of defining the parameters of American government, determining the next President, and shaping the political conversation for years to come. And when you pass CNN’s Jeffrey Toobin in the hall of the Supreme Court, you know there’s no better place to be if law and policy is your bag.
As we lined up once again and prepare to head upstairs, a rosy Michelle Bachmann appeared out of nowhere to join the front of the line. She hadn’t looked that cheerful since she won the Ames straw poll last August. Eventually, after we make our way upstairs and check cell-phones and bags in a locker room, I am led to a seat directly behind Bachmann. She’s not the only congressional Republican on hand: Reps. Tom Price and Catch McMorris-Rogers are a few rows ahead. Senators Hatch and Barrasso found good seats in the middle, too. Paul Clement, attorney for the National Federation of Independent Businesses, was already seated in the back section when Donald Verrilli and others from the Solicitor General’s Office arrived to take their seats only a few rows from the bench.
At 9:55 AM, the justices get a five minute warning with a loud buzz. They head to the robing room, and are in their seats promptly at 10:00 AM. You could literally see the nervous energy spread throughout the courtroom during that five minute period. Guests and the general public started sitting forward in their seats. The media tapped anxiously on their notepads, clearly wishing they could have brought their computers. The elected officials were still talking under their breaths, undoubtedly strategizing for the afternoon.
Dessert: The justices did not appear pleased to be there. Full disclosure, I’ve never been to another opinion reading, but I have a pretty good feeling that waters between some of the chambers were still rocky. After speeding through two other matters, Justice Roberts dove into his opinion. Addressing the individual mandate issue first, he began with a review of the government’s Commerce Clause argument. As he explained his holding that the mandate does not fall within the Commerce power (activity v. inactivity, what we do v. what we don’t do), several people sitting close to me began to cry tears of joy. Justice Scalia was smirking, and Justice Breyer had all ten of his fingertips pressed against his forehead. Well, those tears of joy quickly became tears of disbelief. As Roberts explained why the mandate was justifiable under Congress’ taxing power, Breyer’s hands came down. If Breyer appeared ready to scream, earlier, then Justices Thomas and Scalia now looked like they would self-combust. Thomas whispered into Scalia’s ear several times. A page was running notes between Scalia and Alito. And we all just sat there stunned. There were audible gasps – myself included – when Roberts announced it was a 5-4 holding. After all this hoopla and talk and magazine covers around Justice Kennedy and his role as “The Decider,” he proved largely irrelevant. Sure, Kennedy authored the dissent. And he even started to choke up as he came to his conclusion about the importance of Constitutional principles of limited government. Want my guess? I think Scalia wrote a lot of the dissent but they decided it would be more effective if delivered by Kennedy. While Kennedy has been recognized as the pivotal fifth vote in many cases over the last two decades, Scalia and “political” go hand-in-hand these days. Kennedy’s name gives the dissent more credibility…but, ultimately, it still only got four votes. That won’t do.
After Dinner Drink: No longer can you walk up the portico flight of stairs to the courtroom level; however, that’s still the best way to exit. Because of some building construction, the feeling wasn’t quite as euphoric as I expected. And frankly, I was still stunned from Roberts’ stunt as a tax policy writer. Of course, everyone’s brought back to reality quickly when you walk down the historic stairs to the sound of Michelle Bachmann’s voice calling Tea Party Patriots to action over a PA system. Yes, she stood up and walked out of the courtroom after Roberts finished with the individual mandate. There’s no escaping the politics in any of this. Heck, there’s no escaping the politics in anything, anymore. That being said, this was one of the most remarkable experiences of my life. To be in that room and hear the Chief Justice of the United States read his opinion for the most anticipated case in 11 years was special. To know that there were only about 300 of us who will be able to say we were there is remarkable. And to consider the consequences of the decision of five people is nothing short of frightening.