Prof. Timothy R. Johnson

"Oral argument in the Supreme Court is the thinking man's spectator sport and a grand one at that." It's ironic that Justice Scalia, who years ago described oral arguments as "that dog and pony show," now that he has been on the court for a decade, says that oral arguments are indeed worthwhile. But then perhaps it's because now he's the one who's the center of attention. Oral arguments themselves can provide riveting theater and the Oyez Project is now making them available online (www.oyez.org) for audio download or simultaneous audio and transcript.

This book, a series of essays by esteemed Supreme Court journalists, presents analysis of good and bad arguments before the court. If you've ever listened to the arguments presented before the court, you'll realize what dunderheads some of the lawyers are who appear before the court. In something a little unusual, quotes are referenced to audio clips available at www.goodquarrel.com. If you read this book with your laptop on you lap you can do that, although I much prefer listening to the entire arguments found at Oyez.

In Elk Grove Village School District v Newdow, Dahlia Lithwick uses a the most unusual appearance of the child's father as the plaintiff attorney to demonstrate several rules that are regarded as de rigeur when appearing before the court. Newdow had challenged the Pledge of Allegiance as an unconstitutional establishment of religion by using the words "under god," a phrase that was added only in 1954. He suggested that by forcing his daughter to say those words the school district was saying your father's world view is wrong (Newdow is an atheist." Newdow broke one of the first rules in his first paragraph by using the pronoun "I" and personalizing the case. This is just not done. The justices could care less what the advocates think or feel. To quote Lithwick, their concerns are the following in order of importance: "(1) the Constitution;(2) the Court; (3) not looking stupid; (4)not overtly overruling anything; (5)the dignity of the states; (6) the dignity of the parties; (7) what they are going to eat for dinner; (8) what the oral advocates want." The issue of standing brought up by Justice Kennedy provoked a very interesting exchange as Newdow who had become estranged from his wife (who did not object to the pledge) and did not have full custody.

Newdow had broken another cardinal rule: "Thou shalt not insult the court or the judiciary." He had done so by filing a successful motion that Scalia recuse himself because of public statements he had made about the case. His success was, in itself, quite extraordinary. Newdow violated several other rules, including "Thou shalt not suggest you are smarter than the Justices." Newdow at one point suggested that what Justice Kennedy thought was irrelevant. Not necessarily a winning strategy. He even got the spectators to clap at one of his remarks at the expense of Chief Justice Rehnquist, a major no-no in court decorum.

Ironically, although Newdow violated most of the commandments and lost the case -- based on losing standing -- his presentation and arguments have been considered some of the most effective ever presented.

Perhaps my favorite case was Forsyth County, GA v Nationalist Movement. In response to a huge Civil Rights Movement demonstration that had cost the taxpayers of Forsyth County (the state actually picked up the tab)$670,000 in police protection and other costs Forsyth County (which was 99% white and had a long history of racial antagonism) passed an ordinance requiring a parade permit and permitting the assessment of costs associated with the parade or demonstration. Ironically, it was the minute racist organization that filed a lawsuit against the county claiming the $100 fee they had been assessed for a permit was unconstitutional. This was a bizarre little group located in a small town in Mississippi (on a personal note, I like taking the train down south so I get to pee on Mississippi) whose lawyer, just before he was to argue their case before the court stood on the steps of the court and, in an interview with ABC news, proclaimed that for Biblical reasons blacks should be barred from positions of authority in government and that the Bible overruled anything the court might say. (Clarence Thomas had just been seated to fill Thurgood Marshall's seat.)

The lawyer, Richard Barrett, had been barred from appearances in lower courts because of legal transgressions like lying and not admitting that he had a stake in the outcome. "Concealing or misrepresenting facts is a serious offense for a practicing attorney." The court could have removed Barrett since you do not have a constitutional right to defend yourself before the Supreme Court, and especially after he announced in the pre-argument orientation by the court clerk that he would not answer any questions put to him by Justice Thomas, but would instead stand mute and ignore him. [A review of his biography on Wikipaedia revealed that Barrett was murdered in April 2010 by a man who was outraged by homosexual advances made to him by Barrett, who had been quite vocal in his opposition to homosexuality. As I have always said, people specialize in their deficiencies.:] In this case, however, Barrett had the First Amendment going for him and the justices were naturally skeptical of any ordinance, particularly one with seemingly subjective assessments making it liable for abuse on content grounds.

The commentary the authors add to quotations from the oral arguments are particularly helpful. Lyle Denniston's (a long-time Supreme Court reporter) analysis of the Casey case was especially instructive and he pointed out many little idiosyncrasies of the arguments that I did not catch when listening to the entire presentation. I did not realize that abortion had been legal when the Constitution was written. The anti-abortion folks were relying on the 14th Amendment in passed 1868 when abortion was illegal so Kolbert was argued that the Justices needed to be careful in falling back on whether something was illegal in 1868 in making their decision; her main purpose being to get them to reaffirm Roe rather than just narrowly look at the peculiarities of the Pennsylvania statute. And peculiar it was, as several justices noted in their questions. The law required wives to notify (request permission, really) of their husbands before getting an abortion, not a lover, or acquaintance, or father of the child, only her husband. The idea was to "uphold marital integrity," but as Justice Stevens pointed out, the law was aimed at only a very small number of people, those women who were not likely to discuss the issue with their husbands. It was almost as if the statute didn't matter according to the state's Attorney General. That puzzled several Justices. Scalia, it is clear, aside from obviously making funny remarks, often tries to rehabilitate an advocate's argument, i.e., steer him/her in a more appropriate direction if Scalia feels s/he isn't being persuasive enough in the direction Scalia would like him/her to go. One thought struck me and that was that both Preate and Kenneth Starr, arguing for the administration in support of the statute, seemed to go out of their way to note that they were not arguing for overturning Roe.

The ultimate result was that even though the Court had specifically said it was not going to hear arguments related to overturning Roe, in their decision by a 5-4 majority they specifically noted it was to be considered affirmed law although not as a fundamental right which would have required "strict scrutiny," but rather the "undue-burden" test. Whether that satisfied the very astute attorney for Planned Parenthood, Kathryn Kolbert is not know - to me , anyway. They also overturned the husband notification provision.

The Glickman case was especially instructive, if not very entertaining. Without going into details of the case, it resulted in the lawyer for the growers being sued because he did not defer to a specialist in Supreme Court advocacy, a specialist in First Amendment law who might have won the case for them since the decision was a narrow one, 5-4, but had profound implications for government agricultural policy and check-offs.

This is really a fascinating book featuring eleven different cases written by eleven different reporters. I urge listening to the entire arguments after reading each section to really get a flavor and understanding of the different positions.… (altro)