Here’s a little story about the United States Supreme Court and bare feet. I’m prompted to tell it because the USSC recently changed their official regulations.
There is a recent news story about how the United States District Court for the District of Columbia recently declared unconstitutional the statute prohibiting demonstrations on the Supreme Court grounds. Here, for instance, is the story on CNN: New rules for protests at Supreme Court.
To really understand things, you have to know how laws and regulations nest together. Obviously, Congress is the one that makes the laws, which are signed by the President. Those laws then become part of the United States Code. However, often, those laws (statutes) authorize administrators to make additional regulations.
In this instance, the statute was 40 U.S.C. § 6135, which is part of “Chapter 61 — United States Supreme Court Building and Grounds”. Here’s what the statute says:
§ 6135. Parades, assemblages, and display of flags in the Supreme Court Building and grounds
It is unlawful 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.
Now, this was declared unconstitutional as regards to the sidewalks surrounding the Supreme Court way back in 1983 in United States v. Grace, 461 US 171. In the present case, Hodge v. Talkin, that declaration of unconstitutionality was extended to the plaza in front of the Supreme Court, too. Harold Hodge, the defendant, was arrested merely for wearing a sign while standing peaceably on the plaza. The statute was declared overbroad. For example, as the court put it, the absolute ban on parades, processions and assembling sweeps up all sorts of non-disruptive and innocent behavior.
This clause could apply to, and provide criminal penalties for, any group parading or assembling for any conceivable purpose, even, for example, the familiar line of preschool students from federal agency daycare centers, holding hands with chaperones, parading on the plaza on their first field trip to the Supreme Court. Moreover, as the Pearson court recognized, this clause could apply not only to tourists and attorneys, but to Court employees. Thus, the statute would apply to employees both assembling for lunch or protesting a labor practice or the menu in the Supreme Court cafeteria.
So, the court struck down the statute.
But that meant there was NO restriction any more on any sort of demonstrations at the Supreme Court. So, the Marshall of the Supreme Court used another statute to create a regulation. Here’s the statute that allows the Marshall to create regulations:
§ 6102. Regulations
(a) AUTHORITY OF THE MARSHAL.–In addition to the restrictions and requirements specified in subchapter IV, the Marshal of the Supreme Court may prescribe regulations, approved by the Chief Justice of the United States, that are necessary for–
(1) the adequate protection of the Supreme Court Building and grounds and of individuals and property in the Building and grounds; and
(2) the maintenance of suitable order and decorum within the Building and grounds.
There is a now a brand new Regulation 7 for the Supreme Court:
No person shall engage in a demonstration within the Supreme Court building and grounds. The term “demonstration” includes demonstrations, picketing, speechmaking, marching, holding vigils or religious services and all other like forms of conduct that involve the communication or expression of views or grievances, engaged in by one or more persons, the conduct of which is reasonably likely to draw a crowd or onlookers. The term does not include casual use by visitors or tourists that is not reasonably likely to attract a crowd or onlookers.
(Still seems overbroad to me. Attracting onlookers? Really?)
Anyways, now you know how there can be both statutes and regulations that apply at the Supreme Court.
And we can now proceed with telling the story of my visit to the Supreme Court Building, and How Officials Cheat . . .
I went to the Supreme Court building for its standard tour with two other barefooting friends, Greg and Dave. Dave had been there before and had been forced to put on footwear.
Now, I had researched the statutes and regulations and I could find nothing that required footwear to visit the Supreme Court building. So we got in line to go through security, and when it was our turn the guard refused to let us in, and he did so quite nastily. We tried asking him why and he babbled about decorum and safety (and that the pillars were dangerous—right, massive marble pillars were going to jump out at as and bite our bare feet).
So I asked him where he got his authority to ban us, and he said, “Regulation 3”.
Now, I just so happened to have all the official Supreme Court regulations with me. (At that time there were only 6 of them.) Here’s what Regulation 3 says:
A. Except as authorized by the Marshal, it shall be unlawful for any person, within the Supreme Court Building or upon the Supreme Court grounds, to carry or have readily available to the person, any:
2. “explosive or incendiary device,”
3. “dangerous weapon,” or
4. other substance, material, or other item that may pose a danger to Court property or the safety of the Justices, Court employees, guests, or the general public.
Insert your own joke about “bearing arms” and “baring feet” here.
The guard responded by blanching, standing there slack-jawed, and stammering.
When he recovered, another guard made a phone call, supposedly to their lieutenant, who supposedly consulted with their legal counsel. This took nearly 20 minutes.
But no, we could not go in. They were not going to budge (and they had the guns).
So, what’s the point of having statutes and procedures for making and approving regulations if they can just make stuff up when they want to? They can simply cheat and get away with it.
Now, I suppose we could have pushed our way in and gotten arrested for . . . um . . . what?
Or, we could have put on footwear to get in and then removed it once we were inside somewhere, and then allowed ourselves to be arrested, and then sue them. But we didn’t have any footwear with us. And we really weren’t prepared to be arrested. Quite frankly, we assumed that the people at the Supreme Court would follow the law.
How silly of us.
The trip wasn’t a total loss, though. After we were rejected at the Supreme Court, we went across the street to the U.S. Capitol Building and had a very nice tour there, happily barefoot.