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The Supreme Court in FCC v. Fox II punted–and pissed–on the First Amendment issue and decided the case based on a silly due-process lack-of-notice argument. Whatever. But the Court was clear that next time around it may not be so nice:

Third, this opinion leaves the Commission free to modify its current indecency policy in light of its determination of the public interest and applicable legal requirements. And it leaves the courts free to review the current policy or any modified policy in light of its content and application.

In other words, get your shit together or else.

RBG was not so sanguine:

 In my view, the Court’s decision in FCC v. Pacifica Foundation, 438 U. S. 726 (1978), was wrong when it issued. Time, technological advances, and the Commission’s untenable rulings in the cases now before the Court show why Pacifica bears reconsideration. Cf. FCC v. Fox Television Stations, Inc., 556 U. S. 502, 532–535 (2009) (THOMAS, J., concurring).

And yes, I used several of the seven dirty words in this post intentionally.

I attended the hand-down this morning. Or was it yesterday. Really, my sense of time is bizarrely warped. For some reason, I had the outside hope that the ACA case would be handed down today. I know they will wait till the last day. Whatever. But I decided to go to the Court. That wasn’t a bad decision. The bad decision was to get there at 2 a.m. Why? Honestly, I’m not sure. I thought there would be really long lines filled with line-waiters.

Anyway, at 1:30 a.m. I hailed a cab at the Mayflower and said U.S. Supreme Court. 1 First Street N.E. When I got there, I was stoked. First person there. Winning, I thought. But then, shortly thereafter I realized I was a fool. No one else was there..

When I first arrived, I saw some dark figure standing across the court yard. She called out to me, and asked if I was waiting. Aha, I thought, another person was waiting. So I told her that the line forms along the sidewalk, not in the court yard. I started walking towards the voice and she yelled at me that I could not leave my bag (which I left on the sidewalk) unattended. I could then see that she was in a uniform. I told her, sorry, I didn’t realize she was a security guard. So I walked back to my bag.

I sat down and tried to get comfortable. There is no way. I tossed and turned, rotated several times and tried to find a good spot. There is none. Later that guard came by and I started chatting with her.

She asked if I was a lawyer. I said yes. I asked her about the line, and she assured me that people frequently come this early. So I waited. It didn’t make much sense to cab back to the hotel. I was already awake.

I told her I am a big Supreme Court fan. She, quite snarkily said–“If you were such a big Supreme Court fan you would know that I am a Supreme Court police officer, and not a *security guard*” She said, “Just sayin’.” I couldn’t tell if she waived her arm. I apologized.

She also said that she likes working for Justice Thomas because he talks to her, remembers her name, asks her questions, and shows an interest. Other unnamed Justices were not so friendly.

3:00 came. I was still the only one there.

I went to Union Station to use the bathroom. It was very hot and humid and stuffy. I didn’t want to drink too much because going to the bathroom is a 25 minute ordeal. Though, there was no worry about losing my spot.

4:00 came. I was still the only one there. There are a lot of bugs (spiders and ants) that kept crawling over me. Yes, it was gross.

At this point I was getting really, really, really tired. I had maybe 30 minutes of sleep that night. But I couldn’t fall asleep.

5:00 came. Person number two came! I was hoping he would be some Court nerd. Alas, he was a paid line-water for a firm. And he wasn’t even there to save a seat for arguments. He was there to get an opinion from the Public Information Office. What’s the point? They are posted online immediately. Anyway this guy also waited for the ACA case. He has a team of 10 line-waiter. Interesting guy. The name of his firms is 546. Why 546? 435 Representatives, 100 Senators, 9 Justices, 1 President, and “one company to rule them all.” Some kind of Tolkien reference.

Shortly thereafter two interns from FedSoc showed up. One brought bagels from New Jersey. I was very, very grateful.

After 5, the media started to set up camera spots for live-broadcasts.

Some more interns showed up around 5:30.

Then around 6:00 am a bunch of random people showed up. Two sisters were from Texas. One was an American History teacher (yes I pitched her about Harlan, even when sleep-deprived). The other was “just a mom from Texas who wanted to see the Justices.” She had come on Monday, and waited on line, but didn’t get in. The line slowly increased more and more. Maybe 20 deep.

Around 7:30 a reporter from CBS News Radio came and did some interviews. He didn’t talk to me. I was curious why, as he talked to other people nearby. I was in a suit. Maybe he wanted to talk to the average man.

Shortly before 8:00, the guard asked the first twenty of us to enter the building. Success I thought. We were led into the hallways by the cafeteria where we waited. Then more and more people came. By the time 9:00 arrived, the line was about 50 deep. Everyone who walked in off the street got a seat. In fact, there were empty seats in the Court! I’m glad I arrived so early.

Between 8 and 9, as I was waiting in the hallway right by the Public Information Office, I played Celebrity Watch SCOTUS Edition. I saw my good buddy Mike Sacks. Marcia Coyle walked by. Said hi to Jeff Toobin, and told him I’m working on a book about the ACA case. He said I wouldn’t see the “denouement” today. Nina Totenberg sauntered by. Robert Barnes. And some others.

We were let up around 9. I quickly put my stuff into a locker and rushed to the metal detectors. I was seated around 9:15.

Some celebrity sightings in the Court. Senator Mike Lee entered. He was chatting it up with Nina Totenberg and General Suter. SG Verilli and Sri entered the Court.

The court opened promptly at 10.

Sotomayor announced the opinion in Southern Union. Breyer dissented.

I think there was a slight miscommunication problem. Breyer signaled to the Chief that he wanted to read a dissent. And the Chief thought Breyer wanted to read his dissent in Southern Union. But he wanted to read it in Knox.

Alito announced the opinion in Knox. Immediately after Alito was done, Breyer jumped in, and said something like “I’d like to read a little from my dissent.” And proceeded to read his dissent.

Then Breyer read his opinion in Dorsey. I worked on one of the first Fair Sentencing Act cases in WDPA. SCOTUS disagreed with me, so I was wrong.

Then, AMK announced the opinion in FCC v. Fox. I was excited, until I realize the Court totally punted on the 1st Amendment issue. Frickin waste.

After the case was over, I went down the stairs, and said hi to Adam Liptak, Marcia Coyle, Joan Biskupic, Garrett Epps, Mike Sacks, as Nina breezed by.

I went downstairs and got bench opinions. I’ll give them to Judge or something.

Then I saw the reporters doing live broadcasts. Peter Williams from NBC stands on a crate to look taller in front of the Court. It is fun to guess the questions being asked of Jeff Toobin bc you can only hear him speak.

I was upset that I didn’t hear Kagan speak from the bench. I haven’t heard her say a word in person. She was recused in the two cases I went to last year.

Camping outside the Supreme Court is absolutely miserable. That’s why I will do it again on Monday–though I will get there closer to 5.

Epic failure on the timing here on my part. I suppose i could go back to my hotel, but at this point i may as well just stick around. I have three spare batteries for my phone so i should be able to make it the rest of the day.

In light of the fact that there will be three sittings next week (if the security officer is to be believed), i have a feeling my wait today may be for naught. Maybe we will get the stolen valor act case. or maybe fox v fcc. Or arizona? It better not be some stupid case.

The lights are on in several of the offices. I bet the clerks are feverishly working away.

With apologies to my friend Mike Sacks, the original First One @ One First, tonight I am first. I am not exactly sure why, but I decided to camp outside the Supreme Court to guarantee a seat just in case a certain case is handed down in, oh, about 8 hours. I am the first one here. Not sure when anyone else is coming. I think I grossly overestimated the interest in today’s sitting.

Oh, and the guard told me that there will be sittings next Monday, Wednesday, and Thursday. They already put in the overtime requests. I think i just broke that news, though on a blog that no one can read. Oh well. Ill keep myself occupied.

The rule takes effect Sept. 1, according to a Washington courts press release. The rule allows persons who are trained and authorized by a new Limited License Legal Technician Board to help civil litigants:

• Fill out legal forms.

• Inform clients of procedures and timelines.

• Review and explain pleadings.

• Identify additional documents that might be needed in court.

The rule was recommended by the Practice of Law Board, created by the supreme court in part to recommend ways in which nonlawyers can improve access to law-related services.

The Washington Supreme Court order (PDF) approving the rule notes a “wide and ever-growing gap” in legal services for persons with lower incomes.

The court acknowledged concerns that the plan poses a threat to the practicing family law bar. But “protecting the monopoly status of attorneys in any practice area is not a legitimate objective,” the court said. The order also points out that the technicians won’t be allowed to negotiate with opposing parties and says the new rule “is unlikely to have any appreciable impact on attorney practice.”

The new rule is narrowly tailored, incorporates ethics requirements and includes “appropriate training, financial responsibility, regulatory oversight and accountability systems,” the court said.

Three justices dissented. “During my years on the Washington Supreme court, I have not once authored a dissent to an administrative order of this court,” Justice Susan Owens wrote. “I depart from that custom today because I have very strong feelings that our court’s decision to adopt the new [rule] is ill-considered, incorrect, and most of all extremely unfair to the members of the Washington State Bar Association.” Owens expressed concern that lawyers will be forced to underwrite the costs of the new licensing program.