For $200 and a bit of paperwork, Rep. Keith Rothfus got a front row seat at the Supreme Court’s oral arguments on the latest challenge to the 2010 health care law.
Next to the Pennsylvania Republican was Rep. Louie Gohmert, R-Texas, who once took to the House floor to criticize the court for lack of access for members of Congress. At the time, he made an impassioned call for high court proceedings to be televised.
How they got there is a window into the court's traditions, such as its ban on televised proceedings.
The public line for the high-profile case over the law's contraception mandate Wednesday had formed two days earlier. Hundreds of people interested in the case gathered on the sidewalk in front of the building to protest, including nuns showing support for the Little Sisters of the Poor, the Roman Catholic organization involved in the lawsuit.
But space inside the courtroom is limited to roughly 400 people. The front rows of the public gallery included dignitaries such as Cardinal Donald Wuerl, the archbishop of Washington who earlier this month celebrated the funeral Mass for Justice Antonin Scalia.
Even those seats were still halfway back from the bench. Rothfus got a seat in the section reserved for lawyers at the front of the courtroom. His chair was about 10 feet from Justice Elena Kagan and just as close to the justices as the attorneys arguing the case.
To get his prime seat, Rothfus joined the Supreme Court bar and elected to be admitted in open court on Wednesday. The new members get their name called in open court before the arguments start. They stand up, and take the bar oath.
A lawyer who wants to join only needs to show he or she has been a member in good standing of a state bar for at least three years, have two sponsors who are members of the Supreme Court bar, and pay a $200 fee. Thousands join each year, hundreds in open court. The motion for Rothfus to join the bar was made in court by Bart Forsyth, chief of staff for Rep. Jim Sensenbrenner, R-Wis.
The fees generate about $770,000 per year, which go toward expenses such as the Supreme Court bar’s operation and preparation of the court’s public displays and exhibits.
Rep. Keith Rothfus, R-Pa., attended Supreme Court arguments on a challenge to the 2010 health care law. (Photo By Tom Williams/CQ Roll Call)
Rothfus, 53, a Notre Dame Law School graduate who wants to repeal the health care law, said there are several Catholic entities in his Pittsburgh-area district. The University of Notre Dame challenged the contraceptive mandate in an earlier Supreme Court case.
Rothfus said the current case, Zubik v. Burwell, is one of the most significant religious freedom cases in decades. He had never attended oral arguments before.
“The cross currents were there and I thought, why don’t I take the opportunity to get admitted to the bar and hear oral arguments,” Rothfus said.
Like many lawyers who take that step, Rothfus doesn’t plan to file cases at the high court or argue before the justices. But he says it will give him better access to attend oral arguments when his schedule allows.
After watching the proceedings, Rothfus said he got a new appreciation for the pace of questions from the justices, and the preparation and quick thinking that the arguing attorneys must exhibit to answer.
But he still was unsure whether Supreme Court arguments should be televised. Two justices told House appropriators last year that, despite what they called good arguments for cameras, they want to protect the integrity of the Supreme Court as an institution.
Justice Anthony M. Kennedy told appropriators the justices "are concerned that the presence of a TV camera, the knowledge that we're going to be on TV, would affect the way that we behave. It's an insidious dynamic for me to think one of my colleagues has asked a question just so he or she could look good on TV."
Rothfus said the recorded transcripts of arguments are helpful to the public. “I really haven’t thought about it,” he said. “I think you could have good arguments for and against.”
Gohmert initially was directed to a seat in the Supreme Court bar section, but almost immediately was escorted up to sit next to Rothfus in the section for the lawyers being sworn into the Supreme Court bar. Why was not immediately clear, and Gohmert, did not return a request for comment.
Gohmert, however, has been a vocal critic of the Supreme Court’s refusal to have cameras in the court after being shut out two years ago. The former Texas judge had wanted to watch oral arguments when the last case challenging the health law's birth control mandate came up in 2014.
“As of today, I am going to be the most outspoken supporter of getting cameras in the Supreme Court," Gohmert said later that day on the House floor.
Gohmert noted that in the past members of Congress interested in oral arguments could call over to the Supreme Court clerk and there would be a bench available for lawmakers. He called out by name the marshal of the Supreme Court, Pamela Talkin, and said she may have gotten guidance from the justices not to reserve a spot for lawmakers.
So it is time for cameras in the Supreme Court, he said, so Congress can observe the court.
“If they are going to do something untoward, we need to have people be able to see it,” Gohmert said in 2014. “As members of Congress, if we are funding them, we need to be able to see what they are doing in there with our own eyes, so we need to get cameras in there, and we can thank Pamela Talkin for that.”
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