By Judge Richard Poland
Flagler College Professor
It was the First Monday in October which started like any other First Monday in October at the Supreme Court with the Marshall’s penetrating voice ringing out, “Oyez! Oyez! Oyez! The Chief Justice and the Associate Justices of the United States Supreme Court.” But this time was different. For the first time in two decades, Chief Justice Rehnquist did not take the center seat on the Supreme Court bench. His successor, a former Rehnquist law clerk, John Roberts became the 17th Chief Justice to preside over our nation’s highest court.
Life sometimes presents us with unique opportunities to witness history. Periods or eras in Supreme Court history are delineated by the name of the Chief Justices who preside. I was fortunate to be present at the official opening of the Robert’s era. It was the thrill of a lifetime for a lawyer who later became a judge and who is now a college teacher of the law whose favorite special topics class is entitled - The History and Politics of the U.S. Supreme Court.
Two cases would be argued the morning of October 3, 2006. While of little note to most of us, these were - as are all cases - of great importance to the parties involved. History will record that the first two appellate cases argued before the Robert’s Court were titled IBP, Inc. v. Alvarez and Wagnon v. Prairie Band Potawatomi Nation, respectively. IBP, Inc. involved the question of exactly when the working day begins for employees covered by section 4(a) of the Portal to Portal Act. Does it begin after the donning of the company uniform or after waiting in line for special safety equipment? The issue in Wagnon was whether a Tribal Indian Nation is entitled to collect certain gasoline taxes rather than the sovereign State of Kansas. These may not seem like spell-binding cases, but they held my complete attention during the two hours of oral argument.
Nick Matlach, a Flagler college graduate and one of seven aids to the Court’s Marshall, seated me three rows from the front in the section reserved for members of the Supreme Court Bar. I was so close to the bench that I could have reached out and touched Theodore Olsen, the former Solicitor General of the United States, who would argue the second case. At the invitation of Chief Justice Roberts, Attorney Carter Phillips approached the podium to argue the first case. Perhaps three sentences had passed his lips when Justice Scalia interrupted to ask about the relationship to this case of other precedent. As Phillips answered, Justice Souter inquired about the statutory meaning of “donning and doffing” as it relates to the beginning of the work day. Justice O’Connor almost immediately questioned Phillips about whether putting on safety equipment is not a “principal activity” within the language of the statute. Justice Ginsburg wanted clarification on whether the language of Sections 1 and 2 should be interpreted in the same manner. Rarely did the attorneys have a chance to finish their complete thoughts.
And thus the rapid fire questioning continued throughout the 60 minutes of argument in the first case and then during the 60 minutes of argument for the second case. At the conclusion of the second case, Justice Robert’s stated, “The case is submitted.” Everyone rose and the justices exited the courtroom. I had been impressed by the sharpness of their minds, but I could not help noticing that most of the justices relied on the handrail as they descended the three steps to exit the courtroom. That is understandable, however, since only two of the Justices are younger than 65.
I have several other lasting impressions of the Nine Justices which I will share with you — the shining silver hair and compassionate eyes of Justice Sandra Day O’Connor, the strong presence of Chief Justice Roberts who is clearly the person in charge, the quick wits and senses of humor of Justices Breyer and Scalia (neither the left nor the right can claim exclusive ownership of these human qualities), the aloofness of Justice Thomas who would not disguise his disdain for the oral argument process, the frailty of Justice Ginsburg, the alertness and sparkling eyes of 86 year old Justice Stevens, the rapt attentiveness of Justice Kennedy, and the piercing eyes and articulate voice of Justice Souter.
I left the Supreme Court that day feeling almost giddy. I had been to the Legal Mecca -the Judicial Hall of Fame. I had just witnessed history. Now when I discuss the Supreme Court in my classes, I will do so from a perspective forever changed.