Civil and Human Rights

Step Right Up For The Hottest Arguments of the Year

By Marcia Coyle


Brave the cold. Brush aside the snow predictions. Get there early. They may not offer the sweeping potential of the first major challenge to the Affordable Care Act in 2012, but Tuesday’s U.S. Supreme Court arguments on corporations’ religious objections to that law’s contraception coverage will be the hottest ticket in town.


The 90-minute scheduled arguments in the combined Sebelius v. Hobby Lobby Stores Inc. and Conestoga Wood Specialties Corp. v. Sebelius coincidentally fall just two days after the fourth birthday of the health insurance law and two years—almost to the day—of high court arguments in challenges to the law’s individual coverage requirement and its expansion of Medicaid.


Outside the court on Monday morning, a small group huddled on the sidewalk in sleeping bags and blankets after staking out positions since 4 p.m. Friday in hopes of capturing one of the public seats in the courtroom. By mid-day, the number had grown to about 40, some of whom appeared to be paid line-sitters. But the real challenge to scoring a courtroom seat will come Tuesday morning.


In 2012, 110 members of the public—nearly double the initial estimate—watched the first of three days of arguments on the health law challenges. The court’s public information office seated 117 credentialed members of the press and accommodated 15 others in overflow seating in its own office.


“Tomorrow we do not plan on overflow seating and right now we have around 100 [journalists] in the courtroom, although we may have additional ‘walk-in’ requests tomorrow and could probably add a few more chairs if we need to,” said Kathleen Arberg, head of the public information office.


Elizabeth Wydra, general counsel of the Constitutional Accountability Center, which filed an amicus brief supporting the government, hopes to hear the arguments from the lawyers’ lounge in the Supreme Court building—she arrive in time to stand in the line for members of the Supreme Court bar because “I’m doing a television interview from 8:15 to 9:15.” As for listening in the lawyers’ lounge, she said, “When you have a 90-minute argument, sometimes it’s not so bad to have a water cooler and a restroom nearby.”


Wydra’s colleague, David Gans, the center’s civil rights director, will arrive at the court “very, very early” to stand in the bar line, she added.


Ilya Shapiro, senior fellow in constitutional studies at the Cato Institute, which filed an amicus brief supporting Hobby Lobby and Conestoga, plans to be in the bar line by 7 a.m. “And if that’s too late, I’ll be in the lawyers’ lounge,” he said.


During the 2012 health care arguments, he recalled, he had a “rotating cast of interns” save a position in line for him, but not this time. “I think 7 a.m. ought to do it.”


But Cathy Ruse, senior legal fellow of the Family Research Council, also an amicus supporter of Hobby Lobby, taking no chances. “I’m a member of the [Supreme Court] bar, so my plan is to leave my house at 4 a.m. and arrive at the court by 4:30 and see what I find,” she said. “I’m going to roll the dice and see what happens.”


The Supreme Court police will work to keep the marble plaza free of anticipated demonstrations by groups on each side of the contentious issues raised by the two cases.


NARAL Pro-Choice America along with Planned Parenthood Action Fund, the American Civil Liberties Union, National Women’s Law Center and more than 40 organizations, will host a “Not My Boss’s Business” rally on the court’s sidewalk. The rally will feature more than 25 short speeches from supporters of the birth control benefit. Participating groups are also collecting names for a banner that will be displayed, including nearly 5,000 names from the faith community alone, according to rally leaders.


And the Secular Coalition for America plans to bring secular and nontheistic protesters to the court to press their argument that individual employees have the right to make their own moral and health care decisions.


On the other side, a “Nationwide Rally for Religious Freedom” is being coordinated by the Pro-Life Action League and Citizens for a Pro-Life Society. Members of more than 60 organizations plan to hold a prayer rally in the morning and to unveil their own banner, “Stand Up for Religious Freedom.”


And as if those two cases were not enough to make court devotees salivate and demonstrators ramp up, the justices have announced they will issue decisions in the morning.

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