From the WSJ Opinion Archives
WONDER LAND
A Day in Court
Scalia floats and Breyer rocks.
On Jan. 22, 1973, the Supreme Court of the United States decided Roe v. Wade, creating the right to an abortion. This column is not about abortion. It is about the Supreme Court.
The preceding two sentences would strike some as a contradiction. As proved by the nomination hearings before the Senate Judiciary Committee for John Roberts and Samuel Alito, the Supreme Court resides now in the political mind as all about the right to an abortion, with the rest of the world mere footnotes.
This week offered the last oral arguments in the Court's current term, and on Monday I went to see and hear what the nine Justices do when they are not thinking about abortion. Like a New Yorker who has never been to the Statue of Liberty and a Washingtonian who's never visited the White House, I've managed a career in political journalism without attending an oral argument before the Supreme Court. In a perfect world, all Americans would. Sen. Arlen Specter is proposing to make the Court's corner of the world perfect, but more (well, a little) on him later.
Attending the Supreme Court may be better than going to church insofar as you can't attend the Court in your gym clothes. The Court's hearing chamber may be the last best place to experience authentic decorum anywhere in America. Cell phones? They even forbid reading material. As the moment to begin arrives, a clerk instructs, "Remain absolutely silent." The best yet: "If you find yourself falling asleep, you are free to leave the courtroom." A somnolent 7-year-old in front of me was admonished twice.
The Court is not wholly immune from the compulsions of popular culture. When they entered the chamber, one felt in the presence of celebrities. They sit beneath a large suspended clock, with Roman numerals. Its sweeping second hand is visible to the attorneys who have 30 minutes to make their case. As the 10 a.m. start approached, the room fell from murmurs to whispers to still silence.
The Court heard oral arguments for two cases. The first, anyone could understand; the second, no one could understand. Both held the audience rapt.
The question before the Court in Brigham City v. Stuart was whether police in Utah, responding to complaints about a loud party in a house at 3 a.m., and arriving on the sidewalk to see a kitchen fight among four apparently intoxicated individuals, were wrong to enter the house without getting a warrant. Utah's courts ruled against the police.
Before a word of argument, Justice Scalia, his seniority placing him next to Chief Justice Roberts, had rocked backward, his face suffused with skepticism. To his left, Justice Souter had fixed the attorneys with a stiff, slightly scary New Hampshire stare. Justice Breyer, at one end of the bench, appeared grandly bored (he is not, as Michael P. Studebaker, Mr. Stuart's attorney, will learn). Justice Thomas famously asks no questions at oral argument, but he and Justice Breyer appear to be bench buddies, rocking back to smile and chat each other up over some point of shared amusement.
Brigham City is a case designed to amuse, insofar as Mr. Stuart's attorney is arguing that the police should have telephoned a judge for a warrant even as a fistfight was under way. The Fourth Amendment issue is that the states have varying and conflicting standards in such instances.
There is much discussion of warrants, knocks and noise levels.
Justice Souter: "Why knock if it's obviously a futile gesture, if no one will hear?"
Justice Scalia: "Why is the trial court obsessed with knocking?"
Justice Breyer: "The Constitution says 'reasonable.' A policeman isn't a lawyer. . . . A warrant would take half an hour. There would be more drinking, more violence. What's wrong?"
Mr. Studebaker: "It still requires a warrant."
Justice Breyer, appearing to side with the police, and with emphasis: "I'm saying it's not. It's reasonable." Justice Scalia has now sunk so low in his chair that only the top half of his face is visible to the gallery. He looks like he's floating in a Jacuzzi. Justice Stevens brings down the house with the morning's best probable-cause line: "The adults were intoxicated? That's a serious crime in Utah!"
Chief Justice Roberts, peering over his reading glasses, ends it: "The case is submitted."
Kircher v. Putnam Funds Trust is from another planet. A class-action securities case raising issues of federal and state jurisdiction (of material interest to the mutual-fund industry), it is impossibly abstruse. Yet the colloquy between the Justices and the two competing lawyers fixates the audience. It is an 11-piece orchestra playing a complex legal concerto, and at the end the impulse is to applaud.
Later, the Justices will discuss the cases in a book-lined conference room around a rectangular table. Each Justice has three stacked pads of paper--small, medium and large. Clerks never sit in. There is no record of the conversation. Unlike the sprawling office edifices of Congress in the nearby streets, the Court occupies one square building. On a tour of its nooks and crannies, one encounters virtually no one. The Court's work is done by nine Justices and some 37 clerks, plus a legal team to help choose among 10,000 submitted cases.
Agreed: The issues that rage around the Court over constitutional interpretation are worth fighting over. But in an op-ed piece this week, Judiciary Chairman Specter raged that the public deserved to have the Court's "power" televised. He is wrong. TV of its nature would surely diminish the Court. Anyone who wishes may listen to past oral arguments at www.oyez.org/oyez/frontpage. That includes, quite eerie to hear, Roe v. Wade.
Institutions matter. The Congress is approaching dysfunction. Perhaps the country can survive that. The American presidency has morphed beyond human scale. But to enter the Supreme Court and encounter the place, the people and its essential purpose is to feel carbon-dated to 1789. Though often maddening, its majesty remains intact.
Mr. Henninger is deputy editor of The Wall Street Journal's editorial page. His column appears Fridays in the Journal and on OpinionJournal.com.
