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High Court Access Crunch Underscored at Abortion Case (2)

March 4, 2020, 8:24 PM; Updated: March 4, 2020, 10:49 PM

The U.S. Supreme Court heard argument Wednesday on abortion access, one of the biggest cases of the term. But leaving the contentious issues in the dispute aside, the event served to spotlight the recurring problem of spectator access to the nation’s highest court.

The obligatory campouts to hear arguments at a tribunal that provides no live- or even same-day audio have fueled growing public frustration at being shut out from participation in crucial national discussions.

Perhaps further aggravating those perceptions, court police ordered attorneys queued up for admission to the abortion arguments to take off the pro-choice hats given out by a group that had held a nearby rally while still outside the courthouse.

“Tens of thousands of Americans want to know what happened in the courtroom today, but instead, the justices have again chosen to limit access to the select few who have the connections to get in or the wherewithal to wait in line overnight,” said watchdog group Fix the Court‘s executive director Gabe Roth.

What the general public couldn’t see or hear were arguments over a Louisiana law requiring abortion clinic doctors to obtain admitting privileges at local hospitals, the first high court case to tackle that hot button issue since justices Neil Gorsuch and Brett Kavanaugh joined the court.

The lack of live-stream prompted a state supreme court chief justice, Michigan’s Bridget Mary McCormack, to point out that her court in faraway Lansing provides access that the U.S. Supreme Court does not.

A recent bill introduced in the U.S. House of Representatives would require same-day—and, later, live—audio of high court arguments. It’s awaiting House Judiciary committee action.

Roth said it’s “bizarre” that the justices “seem fine with allowing their work to be filtered through the press or other spectators even as live-streaming argument audio has been a resounding success in the four federal appeals courts that have tried it.”

And for those fortunate enough to attend the argument in June Medical Services v. Russo, the high court cracked down on what they could wear while waiting to get in.

Hats Off

Supreme Court Police told lawyers in the line for members of the Supreme Court bar who wanted to attend oral argument that they couldn’t wear hats bearing the logo of the Center for Reproductive Rights, which held a pre-argument rally on the nearby sidewalk in favor of abortion rights.

Goodwin Procter partner Jaime Santos was one of the people told to remove her hat on Wednesday.

Police said it would otherwise look like the court is endorsing that view, Santos said.

There was no request to cover up other clothing or paraphernalia with speech on it, like a bag that said “cheers” or clothing with logos, she said. She said she didn’t see anyone wearing anti-abortion clothing.

Another lawyer told to remove her hat Wednesday, Tanya Lundberg, said she didn’t see or hear the officer tell anyone else to remove anything other than the teal hats.

Molly Duane, a staff attorney for the reproductive rights group who was also waiting on the bar line, said she was told by an officer to remove her hat or turn it inside out.

Attorneys were asked to remove the hats as they were coming up onto the plaza before entering the building, the Supreme Court’s public information office said Wednesday afternoon.

The effort to tamp down some political speech is not entirely new.

In 2016 the justices rejected review of an appeal challenging a ban on protests on the court’s own plaza, though in 2018 they struck down a law banning political apparel in polling places.

The law at issue in the 2016 case that the high court declined to review says it’s illegal to “parade, stand, or move in processions or assemblages in the Supreme Court Building or grounds, or to display in the Building and grounds a flag, banner, or device designed or adapted to bring into public notice a party, organization, or movement.”

(Adds statement from Supreme Court and detail on Supreme Court protest law. Prior update added argument details. )

To contact the reporters on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com; Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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