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The “we vape, we vote” crowd seems to have gotten through to the White House. In the wake of a well-attended protest on the National Mall and other advocacy efforts, President Donald Trump is apparently rethinking a promised federal ban on flavored nicotine vaping products

Regulators had cleared the ban, and an announcement was expected. “One last thing was needed: Trump’s sign-off,” reports The Washington Post. “But on Nov. 4, the night before a planned morning news conference, the president balked.”

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FREE MINDS

Can an old drug warrior learn new tricks? Democratic presidential candidates such as Sen. Kamala Harris (D–N.Y.) and former New York Mayor Michael Bloomberg have tried, with the former now denouncing cannabis criminalization and the latter now claiming that he regrets his city’s stop-and-frisk policies.

But another 2020 candidate—former Vice President Joe Biden—can’t seem to let go of his old tough-on-crime talking points and Drug War propaganda. He’s still opposed to the idea that marijuana should be legal across the country because it could be a “gateway drug.”

“The truth of the matter is, there’s not nearly been enough evidence that has been acquired as to whether or not it is a gateway drug,” Biden told a townhall crowd in Las Vegas on Saturday. “It’s a debate, and I want a lot more before I legalize it nationally. I want to make sure we know a lot more about the science behind it.”

This is, of course, silly. As Ellen Cranley at Business Insider points out, serious researchers

have found no solid evidence to support the claim that using marijuana leads to the use of harder drugs. A 1999 Institute of Medicine report said marijuana “typically precedes rather than follows initiation of other illicit drug use” but “does not appear to be a gateway drug to the extent that it is the cause or even that it is the most significant predictor of serious drug abuse; that is, care must be taken not to attribute cause to association.”

The National Institute on Drug Abuse says research shows “the majority of people who use marijuana do not go on to use other, ‘harder’ substances,” and drug use can be affected by numerous other biological and environmental factors.

Biden did say that individual states “should be able to make a judgment to legalize marijuana” and that mere possession “should not be a crime.”

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QUICK HITS

• What were people freaking out about over the weekend? British Prince Andrew giving an interview about his friendship with Jeffrey Epstein; Trump making an unscheduled visit to Walter Reed Medical Center (“phase one of my yearly physical,” he claimed); and Pete Buttigieg continuing to surge in Iowa.

Per @ForecasterEnten, this seems pretty significant in Iowa. 38% of Democratic caucus-goers think Warren is too liberal, up from 23% this spring. (Just 4% say she's too conservative.) And Iowa caucusgoers are a pretty darn liberal bunch! https://t.co/pDI44clAPA pic.twitter.com/KVYY1WCiC1

— Nate Silver (@NateSilver538) November 17, 2019

• Here’s the rundown of this week’s impeachment testimony lineup.
• A bill to decriminalize prostitution in D.C. (which elicited more than 14 hours of public testimony back in October) will not even get a committee vote.
• Seattle Police Captain Randal Woolery was arrested in an undercover prostitution sting conducted by his own colleagues
• Three Indiana judges are being disciplined after getting into a drunken brawl with strangers in a White Castle parking lot.
• Amazon is funding housing and other services for homeless families in Seattle.
• “I got my rights to do anything I want to do, I’m a police officer.“
• Hong Kong protests and police responses intensified over the weekend.

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The proposal, introduced by County Legislators Karla Boyce and Kara Halstead, would provide:

Secuon I. A person is guilty of harassing a police officer, peace officer or first responder when he or she intentionally engages in conduct against a police officer, peace officer or first responder, that intends to annoy, alarm or threaten the personal safety of the police officer, peace officer or first responder.

Section 2. The action must occur when such police officer, peace officer or first responder is in the course of performing his or her official duties and the person committing such act knows or reasonably should know that such person is a police officer, peace officer or first responder.

Section 3. Violation of this law shall constitute an unclassified misdemeanor punishable by up to one year of imprisonment and/or a fine of up to S5,000.00.

And the “conduct” would of course include speech, such as saying annoying things about a police officer who is doing his job. Yet “the First Amendment protects annoying and embarrassing speech,” as the New York high court has held, including of course speech that annoys police officers: In the U.S. Supreme Court’s words, “Although we appreciate the difficulties of drafting precise laws, we have repeatedly invalidated laws that provide the police with unfettered discretion to arrest individuals for words or conduct that annoy or offend them.”

(Threatening a police officer, like threatening anyone else, could indeed be outlawed; but this proposal goes beyond that.)

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Last week, I attended oral argument at the Supreme Court in DHS v. Regents of the University of California (the DACA case). The experience was extremely problematic for reasons I will explain in a subsequent post. (I offered a preview on my Twitter feed.) This post will explain how to attend oral arguments the Supreme Court. The process is complicated for those not familiar with the written and unwritten rules.

Argument Days on the Court’s Calendar

The Supreme Court’s term begins on the first Monday in October. Every year, the Supreme Court hears oral arguments in approximately 80 cases. During the October 2019 term, for example, the Court scheduled 38 argument days between October and April. On most argument days, the Court hears two, one-hour argument sessions, starting at 10:00 a.m. Occasionally, the Court will hear a third case in the afternoon. The argument days are shaded in red on the Court’s calendar. Non-argument days, in which the Court issues orders or hands-downs opinions, are shaded in blue. And conference days, when the Justices privately meet, are shaded in green. Generally, the Court does not hear oral argument in May and June.

Configuration of the Supreme Court

The Court chamber is divided into several sections. (On the ground floor of the Supreme Court is a to-scale diorama that, more or less, accurately represents the current configuration of the Court.)

The Justices sit on the angled bench. The Clerk sits to the left of the bench sits in the Clerk. The Marshal sits to the right of the bench. Counsel for the parties sit at the first row of tables, right in front of the bench. Generally, each side brings three or four attorneys. The arguing attorney stands in front of the lectern. (Do not try to adjust it during argument!) The second row of tables in front of the bench is reserved for other attorneys.

The press sit on the left side of the Court, in the red seats in front of the columns. Members with “hard passes” have reserved seats. Other members of the media can request access on a case-by-case basis. Reporters without reserved seats will sit behind the columns on the left side of the Court. The red seats on the left side of the Court are reserved for guests of the Justices. There are plaques installed on the seats with each Justice’s name. The law clerks sit on the far right side of the Court, behind the columns.

Members of the Supreme Court bar sit in front of the brass bar in the middle of the Court. The diorama depicts ten rows of ten seats. I only observed eight rows of ten seats. There are also six chairs on the left side of the Court. I’ll call it 86 seats in the bar section. (I welcome corrections if others have precise numbers).

The general public sits behind the bar. There are 15 benches, each seats 7 people. Generally, one chair is added in the aisle next to each bench. I’ll call it 120 seats. (Again, I welcome corrections for precise numbers.)

The Court also allows people to stand in the back of the chamber for three minutes to watch parts of the oral argument. After the three minutes are up, other people will cycle through.

Obtaining a publicly-available seat

The Supreme Court does not sell tickets. Generally, the Court reserves at least 50 seats for each argument day for the general public. (The total number of general admission tickets will depend on how many other seats are reserved.) People who want to attend oral arguments form a line along First Street that snakes around East Capitol Street NE. For high-profile cases, the line can form several days in advance. These brave souls have to endure the elements. Before the DACA case, people huddled under tarps to stay dry during the rain. Around 7:00 a.m., the Supreme Court will issue golden tickets, numbered 1 through 50, to the first 50 people on line. Those tickets will generally guarantee admission to the argument. Those who are beyond #50 may be able to attend argument if any seats remain vacant. They may also be able to cycle through, and watch three minutes of oral arguments.

Before I was admitted to the Supreme Court Bar, I waited on the public line a handful of times. Perhaps my longest wait came in 2010 for McDonald v. Chicago. I arrived the night before around 9:00 p.m. When I got on the line, I was #40 or so. The following morning, however, I was #48 or so. About eight people cut in front of me by the dawn’s early light. In some cases, paid line waiters would save several spaces. In other cases, people snuck in when no one was looking. The Supreme Court police refuse to monitor the line, and will not intervene if people cut. (More on cutting later.)

After clearing security, those with golden tickets can wait in the cafeteria or check out the Supreme Court’s exhibits. Or (in my case) go to a friend’s house nearby and grab a shower. So long as they are back to the Court around 8:30, they will be allowed to enter.

Obtaining a reserved seat

There are several ways to obtain a reserved seat.

First, each Justice has a designated number of tickets they can give away. This process is as opaque as it sounds. As they say, you have to know someone.

Second, counsel of the parties receive a certain number of seats for guests. This number will vary depending on how many empty seats there are. Guests who are members of the Supreme Court bar can sit in the bar section. Non-attorney guests can sit in the public section. In consolidated cases with several parties, counsel will have fewer tickets.

Third, parties participating in bar admissions will also receive reserved seating. Attorneys who are members of the highest court of their state for three years can apply for admission to the Supreme Court bar. Generally, at the start of each session, the Court will hear several motions for admission. One attorney will rise, and state the names of the members he or she is seeking to admit. After all the names are called, the Chief Justice will ask the inductees to rise, and take the oath. The entire process takes a few minutes, depending on how many people are seeking admission.

On argument days, the Court hears several “small group admissions” (up to 12 applicants). Often, a few small groups are allowed to move for admission on a single day. For example, during the DACA arguments, three attorneys moved for the admission of about 25 members. On non-argument days, the Court hears “large group admissions” (up to 50 applicants). Each person seeking admission is allowed to bring one guest, who sits in the public section.

Many of the bar admissions are scheduled months in advance, to permit the inductees sufficient time to make travel arrangements. But there is another, lesser-known way to attend argument in a specific case. Attorneys can ask the Clerk to schedule a bar admission when a specific case is being argued. The moving attorney, and the attorney taking the oath, are both guaranteed seating in the bar section. I am familiar with this approach, because I employed it in 2016 to attend oral arguments in Zubik v. Burwell. (Ilya Shapiro moved for my admission; the Chief, perhaps against better judgment, granted the motion.)

Obtain a seat in the bar section

Members of the Supreme Court bar, who are not counsel in a given case, and do not have a reserved seat, can also wait on the bar line. This line generally forms on the left side of First Street, and snakes towards Maryland Ave NE. In 2015, the Court prohibited paid line waiters on the bar line. (Lawyers are still saving spots on line; more on that problem later.)

The bar line operates very differently than the public line. First, on the public line, there are 50 guaranteed seats. On the bar line, the number of reserved seats depends on how many seats are reserved for bar admission and for co-counsel. Second, on the public line, Court personnel hand out numbered tickets, so people can easily lay claim to their spot. On the bar line, no tickets are issued. Rather, members of the bar line are asked to enter the Court, go through security, and form another line on the ground floor. At that point, personnel check IDs (to make sure the lawyer is admitted to the bar), and then hands them a numbered ticket. (The process of entering the Court and clearing security creates many, many opportunities for the ordering of the line to change.)

Third, if members of the general public do not secure a seat, they are out of luck. But members of the bar are only partially out of luck. They can sit in the lawyers lounge, and listen to a live-feed of the audio. By my (rough) count, there are about 100 seats in the lawyers lounge. For the DACA case, every seat was full. I heard that during the same-sex marriage cases, there was standing room only. As a result, members of the bar will generally be able to listen, but not see a case being argued.

Summary

Unless you know someone, the only guaranteed way to attend an oral argument is to be one of the first 50 people on the line. And to be really sure, you should stand as close as possible to the front to account for line cutters. If you are a member of the bar, your position is far more uncertain, because the number of available seats depends on how many attorneys are seeking admission in a given day. But, if you are able to obtain a reserved seat, you do not have to worry about these variables.

The next post in this series will explain my experiences during the line for the DACA case. The third post in this series will offer some suggestions to improve the process.

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From Thursday’s opinion by Judge Stephanie A. Gallagher in Bethel Ministries, Inc. v. Salmon (D. Md.):

The facts are derived from Bethel’s Complaint, and are accepted as true for purposes of this Motion. All reasonable inferences to be drawn therefrom are drawn in Bethel’s favor….

Bethel is a Pentecostal Christian Church located in Savage, Maryland. As part of the Church’s mission, it operates Bethel Christian Academy, a private school for students in preschool through eighth grade. Bethel is “unabashedly Christian,” and outwardly shares its Christian beliefs with prospective applicants.

Bethel summarizes its religious beliefs and related practices in its Parent/Student Handbook. The handbook contains a “statement of nondiscrimination,” which states, in relevant part, that Bethel “does not discriminate on the basis of race, color, national and ethnic origin in administration of its educational policies, admissions policies, scholarship and loan programs, and athletic and other school-administered programs.” Bethel does not include sexual orientation or gender identity in its statement of nondiscrimination. In the next paragraph, the handbook says, “It should be noted, however, that Bethel Christian Academy supports the biblical view of marriage defined as a covenant between one man and one woman, and that God immutably bestows gender upon each person at birth as male or female to reflect his image … faculty, staff, and student conduct is expected to align with this view.”

Irrespective of any language in the handbook, Bethel does not consider sexual orientation in the admissions process. Admissions at Bethel is a competitive process based on a formal entrance exam, an evaluation of previous grades, and a pre-enrollment interview. Once students are admitted, the school’s policies apply equally, regardless of a student’s sexual orientation or sexual attraction. For example, the student conduct policy prohibits any communication of a sexual nature and any harassment, physical contact, or public displays of affection….

Maryland’s legislature established the BOOST program in 2016, and has reauthorized funding in each subsequent year…. BOOST provides scholarships for students to attend nonpublic schools in Maryland. However, only students that are eligible for the free or reduced-price lunch program may receive scholarships.

Additionally, scholarships can be used only at schools that meet certain eligibility requirements. Participating schools must sign an assurance stating that they “will not discriminate in student admissions on the basis of race, color, national origin, or sexual orientation.” Even so, the nondiscrimination requirement explicitly states that schools are not required “to adopt any rule, regulation, or policy that conflicts with its religious or moral teachings.” Bethel signed the assurance, and started participating in BOOST during the program’s inaugural year. Ultimately, seventeen Bethel students received BOOST scholarships for the 2016-2017 academic year, and the number increased to eighteen students for the 2017-2018 academic year.

In the fall of 2017, MSDE began investigating participating schools to verify their compliance with the nondiscrimination requirement. When MSDE specifically requested that schools provide their student handbook, Bethel sent its Parent/Student handbook for the 2017-2018 academic year. Throughout the first half of 2018, Bethel corresponded with MSDE about its handbook and related admissions practices. For example, on March 5, 2018, MSDE asked Bethel how its statement on marriage and biological sex was consistent with the school’s assurance that it does not discriminate in admissions based on an applicant’s sexual orientation. Bethel responded with a letter, on March 13, 2018, explaining that the school does not consider sexual orientation in admissions, and that all students are forbidden from engaging in any sexual conduct. Bethel has reiterated numerous times to MSDE and to the Advisory Board that it complies with their nondiscrimination provision.

The Advisory Board met on May 3, 2018 to discuss Bethel’s eligibility for BOOST. At this meeting, Board Member Matthew Gallagher … made several derisive comments about Bethel and its views. For example, he described the school’s view of marriage as “problematic” and suggested that its policy on biological sex violated the nondiscrimination provision. After the May 3 meeting, Defendants requested more information from the school. In response to a follow-up letter from MSDE, Bethel stated that any student who can meet its academic standards is welcome to join the community, regardless of religious beliefs, same-sex attraction, beliefs about marriage, or beliefs about sexual morality.

On June 21, 2018, the Advisory Board met again to consider Bethel’s eligibility for BOOST. Without stating a reason for doing so, the Advisory Board members went into closed session. In fact, Defendant Gallagher noted that, prior to the June 21 meeting, the Board had not gone into closed session for three years. Following the closed session, the Advisory Board members voted to exclude Bethel from the BOOST program. On the same day, they voted to deem Broadfording Christian Academy and Grace Academy eligible for BOOST, even though both schools shared Bethel’s beliefs and policies on marriage and sexual conduct. On December 12, 2018, MSDE sent a letter (1) notifying Bethel that it was disqualified from BOOST for the 2018-2019 and 2019-2020 academic years, and (2) demanding repayment of $102,600, for the years Bethel had participated in the program. Due to this disqualification, and the resulting lack of funding, at least six students were forced to leave Bethel. Moreover, other families were left scrambling to find alternate sources of financial aid….

Bethel has plausibly alleged that Defendants violated several of its First and Fourteenth Amendment rights in the course of deeming the school ineligible for BOOST. The nondiscrimination provision passed by the Maryland legislature states, in relevant part, that schools participating in BOOST cannot discriminate on the basis of sexual orientation “in student admissions.” Critically, Bethel has consistently maintained that the school does not discriminate in student admissions on the basis of sexual orientation. The Advisory Board corresponded with Bethel for more than a year about its admissions process and, specifically, about whether the school was compliant with BOOST’s nondiscrimination requirement. Bethel explained, in several written responses, that it does not consider sexual orientation or sexual attraction when evaluating applications for admission.

In fact, Defendants have not identified any student that Bethel has discriminated against in admissions on the basis of sexual orientation. As such, Bethel alleged in its complaint—which this Court accepts as true at this stage—that it “has not, and will not, discriminate against a student in admissions based on an applicant’s sexual orientation.” Despite these assertions, Defendants voted to deem Bethel ineligible for BOOST, based on a perceived lack of compliance with the nondiscrimination provision.

If, as it alleges, Bethel has not discriminated on the basis of sexual orientation in admissions, then it has plausibly alleged that Defendants infringed upon several of its constitutional rights. Namely, Bethel has presented a plausible case that the Advisory Board’s determination of ineligibility was motivated by the school’s religious affiliation. Bethel is “unabashedly Christian,” and has invoked Christian values in all of its materials that are distributed to prospective applicants and their families. Bethel has plausibly alleged that Defendants deemed it ineligible for BOOST not because of evidence of discrimination in admissions, but because of this Christian identity.

In other words, it is plausible that the Advisory Board, in determining that Bethel violated the nondiscrimination provision, unjustly conflated the school’s religious beliefs with discriminatory behavior. This possibility is evinced by the Advisory Board’s decision to consider Bethel’s eligibility in a closed session, a maneuver that Bethel alleges was a departure from normal procedures.

If the Advisory Board was in fact motivated by Bethel’s religious affiliation, then Defendants took several actions that may have infringed upon its First and/or Fourteenth Amendment Rights. For instance, the Complaint alleges that Defendants sent Bethel a document containing examples of how the school might revise its handbook language to retain BOOST eligibility…. Bethel has plausibly alleged that Defendants regulated the text of the handbook based on its religious character and content. When the government imposes a financial burden on entities because of the content of their speech, such an action may infringe upon their Free Speech rights under the First Amendment. See, e.g., Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, 570 U.S. 205, 214 (2013).

Additionally, … Bethel has plausibly alleged that Defendants discriminated against it because of the school’s religious beliefs, in violation of its rights under the Equal Protection Clause…. Defendants concede that two other schools, Broadfording Christian Academy and Grace Academy, were deemed eligible for BOOST on the same day that Bethel was deemed ineligible. Moreover, according to the Complaint, Broadfording Academy, Grace Academy, and Bethel all have similar beliefs and policies on marriage and sexual conduct. As such, Bethel alleges that Defendants treated its school differently, without any justification. {It is not obvious at this stage whether Defendants discriminated against Bethel and, if so, whether any such discrimination was based on religion or on a different characteristic. Thus, it is unclear whether strict scrutiny or rational basis review would apply. However, Bethel has made its required showing at this stage, regardless of the level of scrutiny.}

For similar reasons, Bethel has met its burden with respect to the other counts in the Complaint. The Complaint provides several examples in which Bethel made clear that sexual orientation is not considered in its admissions process. As noted above, in ruling on Defendants’ Motion to Dismiss, this Court must take as true that Bethel has not discriminated in admissions on the basis of sexual orientation, and thus, must reasonably infer that Bethel has complied with the nondiscrimination provision enforced by Defendants.

Accordingly, Bethel has pled facts amounting to a plausible showing that Defendants deemed the school ineligible for BOOST because of its religious affiliation, thereby depriving it of rights under the Free Exercise Clause …, Due Process Clause for vagueness …, Due Process Clause for interference with parental rights …, and the Establishment Clause ….

 

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11/18/1811: Justice Gabriel Duvall takes judicial oath. Professor David P. Currie said that an “impartial examination of Duvall’s performance reveals to even the uninitiated observer that he achieved an enviable standard of insignificance against which all other justices must be measured.”

 

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