A top Supreme Court staff officer, who protects its property and supervises its police force, is asking a federal appeals court to revive an old law that blocks protesters near the Court’s building.  Technically, the staff member — Marshal Pamela Talkin — is acting in her official capacity, but it is not clear whether the Court itself has embraced her legal effort.

If the constitutionality of the 1867 law that is at issue should ever reach the Court, it presumably would have the authority to decide the case if it had remained out of the dispute in lower courts.  Otherwise, its neutrality might be in some doubt.

In mid-June, a federal district judge in Washington, D.C., struck down the law, finding that it violated the free-speech rights of those who want to demonstrate close by the Court.  Last week, Marshal Talkin, joined by the federal prosecutor in Washington, filed a formal notice that they both were appealing to the D.C. Circuit Court, to overturn the ruling by U.S. District Judge Beryl A. Howell.  The case is docketed in the court of appeals as No. 13-5250, Hodge v. Talkin.

The Supreme Court’s public information officer, Kathleen L. Arberg, was asked whether the Court had taken any part in the decision to appeal.  She replied that the Court would have “no comment on the internal decision-making regarding litigation.”  The notice of appeal lists the Court’s legal officer, Scott S. Harris, as “of counsel” in the case.  (Next month, Harris is scheduled to become the Court’s Clerk.)

Marshal Talkin has been the Court’s key administrative officer since her appointment in 2001.  She presumably was chosen by then-Chief Justice William H. Rehnquist, probably with the concurrence of the other Justices.

The law found invalid by Judge Howell makes it illegal “to parade, stand, or move in processions or assemblages in the Supreme Court Building or grounds, or to display in the Building and grounds a flag, banner, or device designed or adapted to bring into public notice a party, organization, or movement.”   Its constitutionality was challenged by a Maryland college student, Harold H. Hodge, Jr., who had been prosecuted for violating the law in February two years ago.

In nullifying the law, Judge Howell said she was doing so only as it applied to the Court’s plaza — the marble area at the foot of the front steps of the courthouse.  She said she found the law invalid as written, at least as to the plaza, since she had no power to interpret it to have a more narrow reach.

It took the Court’s marshal — with the approval of Chief Justice John G. Roberts, Jr. — only about twenty-four hours to write a new regulation barring any demonstration likely “to draw a crowd or onlookers” in the building or on the grounds.  The ban does not apply to surrounding sidewalks.   The law was based not on the law at issue before Judge Howell, but on a separate law that the marshal said gives the Court the authority to protect its building and grounds and to “maintain suitable order and decorum” in the building and on the grounds.

The appeal by Marshal Talkin and U.S. Attorney Ronald C. Machen, Jr., will unfold through the usual review procedures of the D.C. Circuit.  Under an order of that court on Monday, those pursuing the appeal were told to file by September 11 the legal and constitutional issues they will be raising in the case.

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Recommended Citation: Lyle Denniston, The Court in court — sort of, SCOTUSblog (Aug. 16, 2013, 4:29 PM), http://www.scotusblog.com/2013/08/the-court-in-court-sort-of/