When the Supreme Court convenes next week to hear oral argument in the challenge to President Donald Trump’s September 2017 proclamation – often referred to as the “travel ban” – restricting travel to the United States by citizens of eight countries, many of the reporters covering the hearing will be at the court for the first time. This guide to covering the court is intended for those reporters.
- Before you go
If you want to cover the oral argument in person, there’s one very important preliminary detail to take care of: You need a pass, known as a “day pass” – you can’t just show up and flash your press pass and hope to get into the courtroom. The court’s Public Information Office has issued a media advisory with all of the information you need to ask for a day pass (as well as the assigned seat that comes with your pass); the deadline to do so is 5 p.m. today, April 20.
Once you have a day pass confirmed, it’s time to turn to the substance of the argument. The case arises from a challenge by the state of Hawaii and others (including the Muslim Association of Hawaii and its imam) to the president’s September 2017 proclamation, which banned travel to the United States by certain residents of eight countries – Libya, Iran, Syria, Somalia, Yemen, North Korea, Venezuela and Chad – indefinitely. Two lower courts – the U.S. District Court for the District of Hawaii and the U.S. Court of Appeals for the 9th Circuit – would have blocked the government from implementing the order, but in December the Supreme Court put the lower-court rulings on hold while the Trump administration appealed. That act, which is known as a “stay,” could tell us a little bit about the justices’ views on the case, because the government needed at least five votes to allow the ban to go into effect. Only two justices – Justices Ruth Bader Ginsburg and Sonia Sotomayor – indicated that they would have denied the government’s request for a stay.
There are two main issues in the case: Whether the September 2017 proclamation went beyond the president’s authority under federal immigration laws, and whether it violated the Constitution’s establishment clause, which bars the government from favoring one religion over another. For the Trump administration, the answer to both questions is “no.” The president has broad authority over immigration, the government contends, including the power to block noncitizens from entering the United States when he believes it would harm the country’s interests to do so. And in this case, the government argues, it is clear that the order does not discriminate against Muslims: It stems from a review by several government agencies, which concluded that the eight countries included in the proclamation either were not providing enough information to the federal government to allow it to vet would-be travelers to the United States or presented other “risk factors.” Any statements, made either on the campaign trail or as president, indicating that Trump may have wanted to ban Muslims from coming to the United States are not relevant.
The challengers argue that, although the president does have the authority to regulate immigration, the sweeping ban imposed by the September 2017 proclamation goes far beyond that, indefinitely barring 150 million people from entering the United States based only on their nationality. And the proclamation violates the Constitution’s establishment clause because, like the earlier versions of the travel ban that preceded it, it is unquestionably intended to target Muslims, even if it also imposes “token restrictions” on two non-Muslim countries.
For more detail on the arguments made by each side, you’ll want to review the briefs in the case, which are available on both SCOTUSblog and the Supreme Court’s own website. The parties’ briefs are generally the most important. There is the brief on the merits by the Trump administration, which is known as the “petitioner” because it “petitioned” the Supreme Court to step in and review the lower courts’ decisions. On the other side, Hawaii and the other challengers – known as the “respondents” – filed a brief defending the lower courts’ rulings. The Trump administration also filed a reply brief earlier this week.
In addition to the parties’ briefs, there are also dozens of amicus curiae, or “friend of the court,” briefs filed by everyone from Mormon legal and history scholars to Khizr Khan, the Gold Star father who criticized Trump at the 2016 Democratic National Convention, and U.S. art museums. With the possible exception of the justices’ law clerks, no one will read all of these amicus briefs – and you don’t really need to either. Each amicus brief is required to contain a “summary of the argument,” which lays out the issues that the brief will cover and generally gives you enough information to decide whether you want to keep reading or instead move on to the next one.
For each case that the Supreme Court hears, a summary of the case is also available from the PIO. The court does not vouch for these summaries, which are prepared by law professors or practicing attorneys, but it does distribute them on the day of the argument (another good reason to get to the court early – see below), and they are very reliable. The summary may (but does not always) include a discussion of some of the arguments made by the amici. You can take the summary into the courtroom with you, so you will have some time to read it or reread it once you are in your seat and waiting for the justices to enter.
One other less substantive, but still important, thing to keep in mind as you prepare: The press section will be crowded, and you may not be able to see all of the justices. To be ready for this possibility, it may be useful to spend some time listening to oral arguments so that you can familiarize yourself with the justices’ voices. You can listen to any of the recent oral arguments available at Oyez.org, a website that archives (among other things) all of the audio recorded at the court in the last sixty years, linked to the transcript that shows the name of the justice who is speaking. Recent oral arguments and the transcripts for them can also be found at the Supreme Court’s own website.
- At the Supreme Court
On the day of the oral argument, plan to arrive early. The PIO will tell you when to check in (probably by 8:45 a.m.), but give yourself plenty of time before that, because you will need to go through security to enter the court building, and there may be lines to do so. Once you are through, head to the PIO for your pass, which will include a seat assignment, and information on using the wifi in the press room, which is right next door to the PIO. You can’t take any electronics into the courtroom (including your Apple Watch, so be prepared!), but you can leave your laptop, phones and other belongings in the press room. The press room will be crowded: Most of the room is devoted to cubicles for the roughly two dozen reporters who cover the court on a regular basis, so there will be lots of people milling around (and packed into) the remaining space.
The staff of the PIO (who are, by the way, extremely helpful) will take reporters up to the courtroom in groups, based on their seat assignments. If you are in one of the early groups, be prepared to sit and wait for a while. (On the bright side, that will give you plenty of time to observe, and perhaps participate in, a time-honored tradition for reporters covering really high-profile cases: standing up and craning your neck to see what celebrities – or what passes for celebrities in Washington – are in the public seats, while the marshals in the courtroom admonish you to sit down and lower your voices.)
Before you enter the courtroom, you will have to go through a second security screening. This one involves both passing through a metal detector and a close visual examination of anything you want to bring in with you. Be warned: This can include an inspection of smaller items like wallets or lipsticks, so it may be easier just to leave everything but your notepad and pens (and, if you are over forty, your reading glasses) in the press room.
At about five minutes before 10, one of the police officers in the courtroom will make an announcement that includes instructions for the audience: Remain completely silent throughout the proceedings, notify an officer if you see anything suspicious, and in the event of an emergency do exactly what the officer tells you to do.
At 10 o’clock, you will hear a buzzer, the court’s marshal will call the courtroom to order, and everyone (including you) will stand up as the justices enter the courtroom. Chief Justice John Roberts sits in the middle, and the other justices are arranged around him in order of seniority: Justice Anthony Kennedy, the most senior associate justice, is on his right, while Justice Clarence Thomas, the second-most-senior associate justice, is on his left. This continues through (in order of seniority) Justice Ruth Bader Ginsburg, Justice Stephen Breyer, Justice Sonia Sotomayor, Justice Elena Kagan and Justice Neil Gorsuch, the court’s junior justice. He sits on the far right (the chief justice’s left) end of the bench.
Before getting to the main event, there may be two warm-up acts. The first is that the court could announce opinions in cases that were argued earlier in the term. (We will know for sure by the time April 25 rolls around, but there is no way to know yet.) The justice who has an opinion for the court will read a summary of his or her decision from the bench; some justices will also provide copies of this summary – known as a “bench statement” – to the press via the PIO, although those copies are just for the use of the press and cannot be published. If there is a dissent in the case, the dissenting justice may opt to read a summary of the dissent as well; however, the justices generally only do this if they feel particularly strongly that the majority got it wrong. Depending on how many opinions there are and how long the bench statements are, the whole process could take anywhere from five minutes to much longer. If there are opinions, a second wave of reporters will arrive in the press section a few minutes later; these are the members of the press corps who remain downstairs for the opinion announcement and then race up to take their seats in the courtroom.
When the court has finished issuing opinions, it will also hold swearing-in ceremonies for members of the Supreme Court bar. These are attorneys who have, to put it simply, been eligible to practice somewhere else for at least three years. Confusingly, many people who write about or follow the court also refer to attorneys who appear frequently at the court as “the Supreme Court bar.” To be sure, there is some overlap, but the latter group is significantly smaller and harder to join. (A few years ago, Joan Biskupic chronicled the increased specialization at the Supreme Court in a report for Reuters.) Becoming a member of the Supreme Court bar means that you can serve as the counsel of record in cases at the court, argue cases there, and – perhaps most important for the average bar member – have access to the 50 or so seats in the courtroom reserved for lawyers. How long the swearing-in process takes will also depend on exactly how many people are being admitted – but it shouldn’t take long.
Then the court will move on to the oral argument itself. The justices have only allocated the normal 60 minutes for the argument, but the case is the only one scheduled for the day, which gives them the option to extend the argument beyond an hour if they want. First up will be Noel Francisco, the U.S. solicitor general – the government’s top lawyer at the Supreme Court. Francisco will have 30 minutes, but after about 25 (check your watch or the clock over the bench if you can see it), he will start trying to find a graceful point to sit down and reserve the rest of his time for his rebuttal. Especially in high-profile cases like this one, though, the current chief justice may extend an advocate’s argument time if the justices continue to pepper him with questions while he is attempting to finish up; if the chief justice does so, he will add the same amount of time to the challengers’ time at the lectern.
Francisco will be followed by Neal Katyal, a law professor and private practitioner. Like Francisco, Katyal – who served as the acting U.S. solicitor general during the Obama administration – is no stranger to high-profile cases at the Supreme Court, where he has argued 35 times. Katyal will have approximately 30 minutes to argue on behalf of the challengers and will use all of his time in one appearance; he doesn’t get an opportunity for a rebuttal.
After Francisco concludes his rebuttal, the chief justice will thank him and indicate that “the case is submitted.” At that point, everyone will stand up again (finally!) and the justices will leave the courtroom. Once the justices have exited, the rest of us get to leave. Because so many reporters are expected for the oral argument, it could easily take you five to 10 minutes to get back down to the press room.
Although the oral argument is over, the show continues outside on the court’s marble plaza, where Katyal and perhaps some of his clients may address the press immediately after the hearing. (Lawyers for the federal government do not normally appear on the plaza after arguments.) The press is permitted to record those comments. The transcript of the oral argument and (unusually for the Supreme Court) the audio will be available on the court’s website within a few hours after the argument.
An earlier version of this post, geared toward the oral arguments in the same-sex marriage cases, appeared on SCOTUSblog in 2015. Lyle Denniston and Tom Goldstein also contributed to that guide.