Transcript of Boechler Oral Argument

For those unable to listen to the Boechler hearing or unwilling to devote that much time to it, here is a link to the transcript of the argument.  I tried to listen to the argument, but it was a windy day on the farm causing me to catch bits and pieces but not the whole thing.  I am very thankful for the bill that passed in the fall that will bring upgraded internet to rural communities.

If you want to totally waste your time, you can read about my prior trips to the court below.

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Visiting the Supreme Court in Normal Times

I have had the good fortune to visit the Supreme Court on multiple occasions and based on those visits can suggest different ways to visit an argument once the pandemic allows the Court to return to normal or the next version of normal.

As a first-year law school student, I was obliged to participate in a moot court argument as part of the curriculum at my school.  The 80 students in my section all made an argument in front of a panel of professors, volunteer lawyers, or upper-class members.  Out of that group, I was one of 16 selected to move into the non-mandatory round leading to a champion.  The selected 16 were paired with a random class member.  I was fortunate to be paired with a friend and high school classmate, Faye Ehrenstamm, who has gone on to a distinguished career at the Department of Justice.  Faye and I made it to the finals where we lost to one of my good friends at the law school who deserved to win. 

I mention this story because it led to my first trip to the Supreme Court.  The mock case we argued in the winter of 1975 was based on Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975).  Our final moot court argument occurred shortly before the real case was argued before the Supreme Court on March 25, 1975.  It arose out of Virginia and concerned the then-enforced mandatory fee schedules for legal services.  The lawyers for each side were on the bench at the law school for our argument in the final round, which made for a mighty engaged bench.  The friend who defeated me in the finals had a contact at the Supreme Court who was able to get us guest seats.  We drove up to DC and got to see our moot court judges argue a case before the Supreme Court with which we were intimately familiar.  It was a magical experience for a first-year law student and one I had hoped to create for my students who worked on the tax clinic’s amicus brief in Boechler.  Alas, the pandemic strikes again.

The guest seats in which I sat in 1975 provide a springboard for talking about how you can get to watch the Supreme Court in normal times or at least pre-pandemic normal times.  It’s been a couple decades since I last went to visit the Supreme Court so I could be a little dated on my knowledge. 

Most people who visit the Supreme Court in session do so by standing in line and coming in the front door of the court on their way to a seat in the public gallery.  Depending on the importance of the case, the weather, and the time of year, the line might be quite long or relatively short.  Once you get in, I think you can stay until the end of the day’s arguments or leave when tired of listening to an arcane discussion of some narrow point of law.  It’s also possible to watch the Court for three minutes if you just want to say that you have been by standing in a separate line that moves much faster. 

If you are a member of the bar of a state for three years and in good standing, you can become a member of the Supreme Court bar, which entitles you to sit in front of the “bar” at the Court in a section reserved for bar members.  You stand in line for this privilege as well, though the line is shorter and the possibility of getting in also depends on the popularity of the case being argued.  When you join the Supreme Court bar, you have the option to get admitted remotely or to do it during a session.  If you choose to do it during a session, there is usually a short ceremony at the beginning of each session in which your sponsor tells the Court your name and the Chief Judge welcomes you.  This would be a way to get into the Court and bypass the line on the day of your admission.  I think you get to stay after you are admitted.

If you happen to know someone on the Court or know someone who knows someone, you can watch the sessions as a guest as I did as a law student.  This is how I have typically seen cases because I have never joined the Supreme Court bar.  I do not remember whose guest I was in 1975, but I have subsequently been the guest of the Solicitor General, the Librarian of the Supreme Court and the Chief Justice of the Supreme Court.  If you come to the Court as a guest, you get to enter through a different portal than the public or the bar and sit in a chair on the side of the Court near the front.  When I worked for IRS Chief Counsel as a Branch Chief in the National Office, I worked in the development and perhaps in discussions in the Room of Lies on several cases that went to the Supreme Court.  These were the cases I went to watch.  Other than arriving early for an argument that preceded the case in which I was interested, I have had the good fortune to always watch a case in which I was intimately familiar with the facts and the law.

Of course, another path to watching a Supreme Court case is to be a member of the press.  Perhaps one day I will enter through that door, but I am not holding my breath for that to happen.

Who Qualifies as Press and the Boechler Supreme Court Argument Today

When Les and I went to the last Tax Court judicial conference, we were told that we needed to follow the rules of the press at the conference which involved, inter alia, not attributing comments to specific speakers so everyone felt comfortable in the space.  It felt funny to be treated as part of the press, but there can be advantages.  Recently, a FOIA request was made in which PT asked to be treated as the press to obtain expedited treatment.  A request was also made by PT regarding early receipt of the National Taxpayer Advocate’s annual report.  The IRS agreed to both requests.  With thousands of subscribers, millions of page views, and a body of posts, I think it is fair to say that we qualify as the press and there is some court precedent supporting bloggers as members of the press as well as blog posts suggesting bloggers are members of the press.

Today, the Boechler case is being argued in the Supreme Court.  The issue is one the Harvard Tax Clinic has been working on for six years, and I wanted to attend the hearing.  The problem with attending the hearing is that because of the pandemic the justices would just as soon not sit in a room filled with hundreds of strangers, so the hearings before the Supreme Court at present are ones in which only essential Court personnel, the litigants and the press can attend. 

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Press Passes

A nice Tax Court judge who heard me talk about my desire to watch the Boechler oral argument suggested to me that perhaps I should seek to attend the hearing as a member of the press.  After all, no news outlet has provided more coverage of this case than PT, even if our audience may not be as large as some news vendors.  So I thought why not ask.  It turns out the Supreme Court has two categories of press passes – day passes and hard passes.  There’s a reason they are called hard passes.  They are definitely hard to come by.  Here is a list of the persons holding hard passes.  No bloggers on there, not even someone from the SCOTUSblog. For a SCOTUSblog post on the case, look here.

I thought I might have a shot at a day pass, and maybe I did; you can see the requirements here with additional details here, and I had a need to report from the Court for all of you – our faithful readers, but unfortunately the current restrictions only allow members of the press with hard passes and not day passes.  When I spoke to the friendly person at the Supreme Court about attendance, I did not get warm fuzzy feelings that she was interested in having me attend, but she did point me to the broadcast of the argument.  I pass along to any of you who have not listened to Supreme Court arguments but who might be interested in listening to this morning’s argument that same possibility.

The Argument

If you go to this link at 10:00 AM ET this morning, you should be able to hear the oral argument.  Melissa Sherry of Latham & Watkins is making the argument for the petitioner.  She and her team of Caroline Flynn and Amy Feinberg, a former student of the Harvard Tax Clinic who argued this issue before the 4th Circuit while a student and this case before the 8th Circuit remotely during the pandemic, have done an outstanding job of briefing the case.  I anticipate Melissa will make an excellent argument.  When I have had the opportunity to go to the Supreme Court in person in the past and see oral arguments, the person arguing for the Solicitor General’s office has always done an excellent job.  I expect no less today.

I provided links to the opening brief by the petitioner and the amicus briefs in this post.  Here are the answering brief of the government and the reply brief of the petitioner for those of you interested in a complete set.  At the ABA Tax Section mid-year meeting which starts at the end of this month, I will join Bryan Camp, Kandyce Korotky and Amy Feinberg on a panel taking place on February 2, 2022, from 12:30 – 2:00 PM ET to discuss the case and its possible impact.  You can register for the meeting here.