Eye Contact in the Highest Court in the Land

by Ryan Rodenberg

Supreme Court Justice Stephen Breyer looked at me and nodded at 1:33PM Eastern Daylight Time on January 21, 2014.

I arrived early that day. You have to. Seating is limited at the Supreme Court. At 6:04AM, I was eighth in the queue. Snow was imminent. Most schools in DC, Virginia, and Maryland were closed. The federal government was closed too, but Chief Justice John Roberts kept the doors of justice open. It takes more than a few flurries to close this Article III court.

The day’s docket was unique. Instead of the typical two cases, three oral arguments were on the schedule. I had no personal stake in the outcome of any of the disputes. I was simply interested in observing the process and witnessing the back-and-forth between the justices and lawyers in real time. Neither live audio nor video are allowed at the Supreme Court, so attending in-person is the only option. The justices’ questions and commentary, coupled with their body language and tone of voice, sometimes foretell how the cases will be decided. Armed with first-hand observation, journalists will often turn soothsayer after attending oral arguments.

At 7:25AM, the line had yet to move. I was just trying to stay warm, marching in place. I tried not to look strange, but it is hard not to look strange while doing high knees near the entrance of the nation’s highest court. I re-read my papers summarizing the trilogy of cases to be heard. First up was Harris v. Quinn. Harris was one of several state employee plaintiffs. The latter, Pat Quinn, is the governor of Illinois. I read the “question presented” three times and my confusion increased. My sense was that the dispute had something to do with a government worker who did not want to the join a union.

The second case was Petrella v. MGM. The case stemmed from the classic boxing movie Raging Bull. That sounded pretty cool. The overriding legal dispute centered on whether the doctrine of laches can be invoked as a defense to a copyright infringement claim. That didn’t sound very cool. My Black’s Law Dictionary started collecting dust years ago. I couldn’t recall what laches meant.

The third case, Navarette v. California, resonated. The issue was straightforward:

I thought this one could be lively. Topics like anonymous tipsters, traffic stops, and the Fourth Amendment’s prohibition on unreasonable searches and seizures were sure to elicit a number of interesting questions and hypotheticals from the justices. Fourth Amendment cases also tend to result in unpredictable splits along the Supreme Court’s ideological divide. Just two years ago, in a high-profile case involving the warrantless use of a GPS device attached to a suspect’s vehicle, left-leaning Justice Sonya Sotomayor joined Justice Antonin Scalia’s 5–4 majority opinion and conservative Justice Samuel Alito wrote a concurrence. I was curious if this, or something like this, might happen again.

The line started moving at 8:45AM. After a security screening, I followed others to the coat check room. Electronics are not allowed in the courtroom, so I put my phone in a tiny coin-operated locker. I then trailed a group of others up a staircase. At 8:55AM, I lined up behind what must have been one hundred people. How did so many people get in front of me? I wasn’t sure, but I knew that the only thing separating us and the courtroom where Roe v. Wade, Miranda v. Arizona, and Bush v. Gore were decided was what looked like a thirty foot tall maroon-colored blind hanging all the way to the floor. The thick curtain was pulled back and an usher led us to our seats. The wooden benches were huge, reminiscent of pews at an old church.

I took my seat for an hour-long wait. Oral arguments were slated to start at 10:00AM. The courtroom was at full capacity.

For the first two cases — Harris v. Quinn and Petrella v. MGM — I sat in a far corner, at least fifteen rows behind the front portion, which is reserved for the lawyers arguing the cases. A huge white column was to my immediate right. All nine justices were within my line of sight, but I couldn’t see any details. I was too far away. Facial expressions were a blur. Some of the justices were difficult to hear when they turned away from their microphone. At noon, the court recessed for a break. Navarette v. California was next, after lunch. I dashed to the in-house cafeteria and grabbed a half-dozen chocolate chip cookies. The Supreme Court cafeteria has great chocolate chip cookies.

At 12:35PM, I returned to the secondary security screening for re-entry to the courtroom. There were more security guards and administrative personnel milling around than there were would-be attendees. I was ushered in to a near-empty courtroom. I was seated in the second row, near the curved and elevated platform where the justices sit. Chief Justice Roberts sat in the middle, flanked by four justices on each side. Proximity to the Chief is based on seniority. Justice Scalia and Justice Anthony Kennedy, both nominated by President Reagan, were closest. Justice Sotomayor and Justice Elena Kagan, President Obama’s two appointees, were on the far wings.

I was about twenty feet from Justice Sotomayor’s chair. Justice Breyer, twenty years into his tenure on bench since being nominated by President Clinton in 1994, was seated immediately to her left.

At 1:00PM, the justices entered. Everyone rose. I glanced around. The continuing snow had clearly affected attendance.

The Chief Justice introduced the case with considerable brevity:

Mr. Kleven represented Lorenzo Prado Navarette and Jose Prado Navarette, criminal defendants contesting their arrest for marijuana possession on the theory that a single anonymous (and uncorroborated) tip failed to satisfy the reasonable suspicion standard embedded in the Fourth Amendment. Mr. Kleven was interrupted early and often, as is common practice in Supreme Court oral advocacy. Most of the early questions were posed by the more conservative faction of the Court. They probed Mr. Kleven with hypotheticals, trying to tease out the limits of his argument. From Chief Justice Roberts:

Justice Breyer, usually one of the most frequent (and witty) questioners during oral argument, must be biding his time, I thought. He became more active about halfway through the hour-long argument. He offered up the following at 1:33PM:

White horse defense? Criminal activity in the former Yugoslavia? Bootstrapping? I had no idea what Justice Breyer was talking about. I instinctively nodded in approval anyway. He must have caught the motion of my head in his peripheral vision. He turned right towards me, glanced for a split-second, and nodded in return. He quickly returned his gaze to the lawyer standing at the lectern and continued his questioning. I swiveled in my seat, looking around. Did any of the people sitting near me notice what had just occurred? None of my fellow attendees deviated from their stoic poker face.

I don’t remember much from the courtroom after that. A Supreme Court justice had just looked at me and nodded. I told several people about what had happened in the subsequent days. They all looked at me funny. No one else approvingly nodded like Justice Breyer. I am not sure why. It seemed noteworthy and interesting. I thought it might also provide some insight into how the case would be decided. Would Justice Breyer’s hybrid question/comment turn out to be revealing? Perhaps even dispositive?

The justices often take several months to render their written decisions after oral argument. Navarette v. California was decided on April 22, 2014 in a twenty-four page opinion. The 5–4 split was unusual. Justice Clarence Thomas, probably the Court’s most conservative jurist, authored the majority decision. Chief Justice Roberts, Justice Alito, and Justice Kennedy all joined Justice Thomas’s decision. No surprise there.

The fifth vote for the majority came from Justice Breyer.

Justice Scalia, whose votes often mirror those of Justice Thomas, penned a stinging dissent joined by Justices Ginsburg, Kagan, and Sotomayor. I scratched my head. I re-read the oral argument transcript. Were there any clues foreshadowing such an odd 5–4 split? I was frustrated, unable to reconcile the resolution of Navarette v. California with what had happened in the courtroom. Justice Breyer had looked at me and nodded, but the substance of his comment preceding our brief interaction was nowhere to be found in the opinion. Was it irrelevant? Dismissed by the others?

From Justice Thomas’s majority decision:

The decision made no mention of white horses, Yugoslavia, or bootstrapping. Justice Breyer’s thought-provoking question, which I had visibly approved of despite my ignorance of its meaning, was absent, completely scrubbed.

Justice Breyer looked at me and nodded at 1:33PM on January 21, 2014. The next time we have a fleeting intellectual connection, however, I probably won’t tell anyone about it.

Ryan M. Rodenberg is an assistant professor of forensic sports law analytics at Florida State University. The Supreme Court is, as of last Monday, back in session.