A reporter’s guide to covering the same-sex marriage cases at the Supreme Court
on Apr 20, 2015 at 4:29 pm
When the Court convenes on April 28 to hear oral arguments in the challenges to state bans on same-sex marriage, many of the reporters covering the hearing will be at the Court for the first time. This guide to covering the Court is intended for those reporters.
- Before you go
If you want to cover the oral arguments in person, there’s one crucial preliminary detail to take care of: you will need a seat. The Court’s Public Information Office has issued a media advisory with all of the information you need to ask for a seat; the deadline to do so is tomorrow (Tuesday, April 21), although at this point it’s very unlikely that additional reporters can now request seats.
Once you have the seat in the Courtroom locked down, it’s time to turn to the substance of the arguments. There are four separate cases before the Court – one each from Ohio, Tennessee, Michigan, and Kentucky. When they granted review, the Justices limited the issues before them to two questions: (1) whether the Constitution requires states to allow same-sex couples to marry; and (2) whether the Constitution requires states to recognize the marriages of same-sex couples who were legally married in another state. These are known as the “marriage” and “recognition” questions, respectively. But not every case asked the Court to weigh in on both of those questions, so briefs filed by particular plaintiffs address the questions that they presented in their petitions for certiorari (i.e., requests that the Court hear the case).
About the briefs. There are a lot of them. Some amount of triage is essential to get ready for the oral argument. All of the briefs are housed here on the blog (organized for each case — Ohio, Tennessee, Michigan, and Kentucky) and on the Supreme Court’s own website.
In each of the four cases, the parties’ briefs are generally the most important. There are briefs on the merits by the plaintiffs challenging the state laws; they are known as the “petitioners” because they “petitioned” the Court to review the lower court’s decision upholding the state laws. On the other side, each set of state officials defending the laws – known as the “respondents” – filed briefs in their respective cases. The petitioners also get to file reply briefs, which are due at the Court on the afternoon of April 17.
In addition to the parties’ briefs, there are also over a hundred amicus, or “friend of the court,” briefs filed by everyone from the Cleveland Choral Arts Association and Facebook – both of which filed briefs in support of the challengers – to the U.S. Conference of Catholic Bishops and an advocacy group founded by Mike Huckabee, which support the states that seek to uphold bans on same-sex marriage. The United States also filed an amicus brief supporting the challengers.
With the possible exception of the Justices’ law clerks, no one will read all of these amicus briefs – and you don’t really need to either. Each amicus brief is required to contain a “summary of argument,” which lays out the issues that the brief will cover and generally gives you enough information to decide whether you want to keep reading or instead move on to the next one. The only exception is the brief of the United States, which always receives considerable attention from the Court (and which will participate in the oral argument on the marriage question).
For each case that the Supreme Court hears, a summary of the case is also available from the PIO. The Court does not vouch for these summaries, which are prepared by law professors or practicing attorneys, but it does distribute them on the day of the arguments (another good reason to get to the Court early – see below), and they are very reliable. The summary may (but does not always) include a discussion of some of the arguments made by the amici. You can take the summary into the Courtroom with you, so you will have some time to read it or reread it once you are in your seat and waiting for the Court to enter. If you want to read them before next week, their official title is Preview of U.S. Supreme Court Cases, published by the American Bar Association, and they are available through the ABA’s website.
One other less substantive, but still important, thing to keep in mind as you prepare: The press section will be crowded, and you may not be able to see some or all of the Justices. To be ready for this possibility, it may be useful to spend some time listening to oral arguments so that you can familiarize yourself with the Justices’ voices. You can of course listen to any of the recent oral arguments available at Oyez.org, a website that archives (among other things) all of the audio recorded at the Court in the last sixty years, linked to the transcript that shows the name of the Justice who is speaking. Recent oral arguments and the transcripts for them can also be found at the Court’s own website. But if you want to multitask by getting some background on the substantive arguments before the Court while you listen, you could try the 2013 oral arguments in Hollingsworth v. Perry, the challenge to California’s ban on same-sex marriage. On the day of the oral arguments, the PIO will also have a hand-out that identifies the Justices by name and where they sit on the bench, which will be helpful.
- At the Court
On the day of the oral argument, plan to arrive early. The Court’s Public Information Office will tell you when to check in, but give yourself plenty of time before that, because you will need to go through security to enter the Court building, and there may be lines to do so. Once you are through, head to the PIO for your pass, which will include a seat assignment, and information on using the wifi in the press room, which is right next door to the PIO. You can’t take any electronics into the Courtroom, but you can leave your laptop, phones, and other belongings in the press room. The press room will be crowded: most of the room is devoted to cubicles for the roughly two dozen reporters who cover the Court on a regular basis, so there will be lots of people milling around (and packed into) the remaining space.
The staff of the Public Information Office (who are, by the way, extremely helpful) will take reporters up to the Courtroom in groups, based on their seat assignments. If you are in one of the early groups, be prepared to sit and wait for a while. (On the bright side, that will give you plenty of time to observe, and perhaps participate in, a time-honored tradition for reporters covering really high-profile cases: standing up and craning your neck to see what celebrities – or what passes for celebrities in Washington – are in the public seats.)
Before you enter the Courtroom, you will have to go through a second security screening. This one involves both passing through a metal detector and a close visual examination of anything you want to bring in with you. Be warned: this inspection can include opening up smaller items like wallets or lipsticks, so it may be easier just to leave everything but your notepad and pens (and, if you are over forty, your reading glasses) in the press room.
At about five minutes before ten, one of the police officers in the Courtroom will make an announcement that includes instructions for the audience: Remain completely silent throughout the proceedings, notify an officer if you see anything suspicious, and in the event of an emergency do exactly what the officer tells you to do.
At ten o’clock, you will hear a buzzer, the Court’s marshal will call the Courtroom to order, and everyone (including you) will stand up as the Justices enter the Courtroom. The Chief Justice sits in the middle, and then the other Justices are arranged around him in order of seniority: Justice Antonin Scalia, the most senior Associate Justice, is on his right, while Justice Anthony Kennedy, the second-most-senior Associate Justice, is on his left. This continues through (in order of seniority) Justice Clarence Thomas, Justice Ruth Bader Ginsburg, Justice Stephen Breyer (who sits next to Justice Thomas and often has animated conversations with him), and Justice Sonia Sotomayor, until you get to Justice Elena Kagan, the Court’s junior Justice. She sits on the far right (the Chief Justice’s left) end of the bench.
Before getting to the main event, there may be two warm-up acts. The first is that the Court could announce opinions in cases that were argued earlier in the Term. (We will know for sure by the time April 28 rolls around, but there is no way to know yet.) The Justice who has an opinion for the Court will read a summary of his or her decision from the bench; some Justices will also provide copies of this summary – known as a “bench statement” – to the press via the PIO, although those copies are just for the use of the press and cannot be published. If there is a dissent in the case, the dissenting Justice may opt to read a summary of the dissent as well, although that is unlikely because the Justices generally only do this if they feel particularly strongly that the majority got it wrong. Depending on how many opinions there are and how long the bench statements are, the whole process could take anywhere from five minutes to much longer. If there are opinions, a second wave of reporters will arrive in the press section a few minutes later; these are the members of the press corps who remain downstairs for the opinion announcement and then race up to take their seats in the Courtroom.
When the Court has finished issuing opinions, it will also hold swearing-in ceremonies for members of the Supreme Court bar. These are attorneys who have, to put it simply, been eligible to practice somewhere else for at least three years. Confusingly, many people who write about or follow the Court also refer to attorneys who appear frequently at the Court as “the Supreme Court bar.” To be sure, there is some overlap, but the latter group is significantly smaller and harder to join. (Joan Biskupic recently chronicled the increased specialization at the Court in a report for Reuters.) Becoming a member of the Supreme Court bar means that you can serve as the counsel of record in cases at the Court, argue cases there, and – perhaps most important for the average bar member – have access to the fifty or so seats in the Courtroom reserved for lawyers. How long the swearing-in process takes will also depend on exactly how many people are being admitted – but it shouldn’t take long.
Then the Court will move on to the oral arguments themselves. The Court has divided the two-and-a-half hours of oral argument time (ninety minutes more than the usual one hour allocated for oral arguments) into two parts. During the first ninety minutes, it will focus on the “marriage” question. As with the briefs, the plaintiffs challenging the state bans on same-sex marriage get to go first. And although there are four different cases with multiple plaintiffs in each case, only one lawyer will appear on behalf of the challengers on the marriage question: Mary Bonauto, a longtime gay rights advocate who received a MacArthur “genius” award last year and who will be arguing before the Justices for the first time. (Earlier in the month, this blog’s Lyle Denniston covered the process that determined which lawyers would argue in the case; on Twitter, Adam Liptak of The New York Times compared the lawyer-selection process on the plaintiffs’ side to “talks rivaling [the] Iran nuclear deal.”) Bonauto will have thirty of the forty-five minutes allocated to the challengers; after about twenty-five minutes (check your watch or the clock over the bench if you can see it), she will start trying to find a graceful point to sit down and reserve the rest of her time for her rebuttal. Especially in high-profile cases like this one, though, the current Chief Justice may extend her argument time if the Justices continue to pepper her with questions while she is attempting to finish up; if he does so, he will add the same amount of time to the state’s time at the lectern.
Next up at the lectern will be Solicitor General Don Verrilli, the federal government’s top lawyer at the Supreme Court. He will have approximately fifteen minutes to argue on behalf of the federal government in support of the challengers. He will use all of his time in one appearance; he doesn’t get an opportunity for a rebuttal.
The third and final lawyer to address the “marriage question” will be John Bursch, arguing on behalf of the states. Bursch, the former solicitor general of Michigan, is now a lawyer in private practice and has argued at the Court eight times. Unlike Bonauto, Bursch won’t have to share his forty-five minutes with anyone else, but he also doesn’t get a rebuttal.
After Bonauto’s rebuttal time, the Court will move on to one hour of oral arguments, by two different lawyers, on the “recognition” question. Washington lawyer Douglas Hallward-Driemeier will argue on behalf of the challengers. Except for Verrilli, Hallward-Driemeier is the most experienced Supreme Court advocate in the group, having argued before the Justices fifteen times in both private practice and in his former position as an assistant to the U.S. Solicitor General. The United States is not appearing in this portion of the argument, so Hallward-Driemeier will get to use all of the thirty minutes allocated to the challengers, although – like Bonauto – he will try to save at least four or five minutes of that time for his rebuttal.
The states will be represented on the recognition question by Joseph Whalen, an associate solicitor general from Tennessee. Like Bonauto, it will be Whalen’s first oral argument before the Justices, but during his time in the Tennessee solicitor general’s office he has appeared on myriad Supreme Court briefs.
After Hallward-Driemeier concludes his rebuttal, the Chief Justice will thank him and indicate that “the case is submitted.” At that point, everyone will stand up again (finally!) and the Justices will leave the Courtroom. Once the Justices have exited, then the rest of us get to leave. Because of the large number of reporters expected for the oral argument, it could easily take you five to ten minutes to get back down to the press room.
But although the oral arguments are over, the show continues outside on the Court’s marble plaza, where the advocates and perhaps some of their clients may address the press immediately after the hearing is over. The press is permitted to record those comments. The transcript of the oral argument and (unusually for the Supreme Court) the audio will be published on the Court’s website as files in a few hours; we will also link to both the transcript and the audio on the blog as soon as possible.
Lyle Denniston and Tom Goldstein also contributed to this guide.