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Transcript of Boechler Oral Argument

Posted on Jan. 13, 2022

For those unable to listen to the Boechler hearing or unwilling to devote that much time to it, here is a link to the transcript of the argument.  I tried to listen to the argument, but it was a windy day on the farm causing me to catch bits and pieces but not the whole thing.  I am very thankful for the bill that passed in the fall that will bring upgraded internet to rural communities.

If you want to totally waste your time, you can read about my prior trips to the court below.

Visiting the Supreme Court in Normal Times

I have had the good fortune to visit the Supreme Court on multiple occasions and based on those visits can suggest different ways to visit an argument once the pandemic allows the Court to return to normal or the next version of normal.

As a first-year law school student, I was obliged to participate in a moot court argument as part of the curriculum at my school. The 80 students in my section all made an argument in front of a panel of professors, volunteer lawyers, or upper-class members. Out of that group, I was one of 16 selected to move into the non-mandatory round leading to a champion. The selected 16 were paired with a random class member. I was fortunate to be paired with a friend and high school classmate, Faye Ehrenstamm, who has gone on to a distinguished career at the Department of Justice. Faye and I made it to the finals where we lost to one of my good friends at the law school who deserved to win.

I mention this story because it led to my first trip to the Supreme Court.  The mock case we argued in the winter of 1975 was based on Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975).  Our final moot court argument occurred shortly before the real case was argued before the Supreme Court on March 25, 1975.  It arose out of Virginia and concerned the then-enforced mandatory fee schedules for legal services.  The lawyers for each side were on the bench at the law school for our argument in the final round, which made for a mighty engaged bench.  The friend who defeated me in the finals had a contact at the Supreme Court who was able to get us guest seats.  We drove up to DC and got to see our moot court judges argue a case before the Supreme Court with which we were intimately familiar.  It was a magical experience for a first-year law student and one I had hoped to create for my students who worked on the tax clinic’s amicus brief in Boechler.  Alas, the pandemic strikes again.

The guest seats in which I sat in 1975 provide a springboard for talking about how you can get to watch the Supreme Court in normal times or at least pre-pandemic normal times. It’s been a couple decades since I last went to visit the Supreme Court so I could be a little dated on my knowledge.

Most people who visit the Supreme Court in session do so by standing in line and coming in the front door of the court on their way to a seat in the public gallery.  Depending on the importance of the case, the weather, and the time of year, the line might be quite long or relatively short.  Once you get in, I think you can stay until the end of the day’s arguments or leave when tired of listening to an arcane discussion of some narrow point of law.  It’s also possible to watch the Court for three minutes if you just want to say that you have been by standing in a separate line that moves much faster.

If you are a member of the bar of a state for three years and in good standing, you can become a member of the Supreme Court bar, which entitles you to sit in front of the “bar” at the Court in a section reserved for bar members.  You stand in line for this privilege as well, though the line is shorter and the possibility of getting in also depends on the popularity of the case being argued.  When you join the Supreme Court bar, you have the option to get admitted remotely or to do it during a session.  If you choose to do it during a session, there is usually a short ceremony at the beginning of each session in which your sponsor tells the Court your name and the Chief Judge welcomes you.  This would be a way to get into the Court and bypass the line on the day of your admission.  I think you get to stay after you are admitted.

If you happen to know someone on the Court or know someone who knows someone, you can watch the sessions as a guest as I did as a law student.  This is how I have typically seen cases because I have never joined the Supreme Court bar.  I do not remember whose guest I was in 1975, but I have subsequently been the guest of the Solicitor General, the Librarian of the Supreme Court and the Chief Justice of the Supreme Court.  If you come to the Court as a guest, you get to enter through a different portal than the public or the bar and sit in a chair on the side of the Court near the front.  When I worked for IRS Chief Counsel as a Branch Chief in the National Office, I worked in the development and perhaps in discussions in the Room of Lies on several cases that went to the Supreme Court.  These were the cases I went to watch.  Other than arriving early for an argument that preceded the case in which I was interested, I have had the good fortune to always watch a case in which I was intimately familiar with the facts and the law.

Of course, another path to watching a Supreme Court case is to be a member of the press.  Perhaps one day I will enter through that door, but I am not holding my breath for that to happen.

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