How to Listen to Oral Arguments
I’m not going to blog about the gay marriage cases the Supreme Court is hearing this week. Instead, I’d like to tell you how to listen to those cases.
Well, I will talk about them briefly, and only to note what you already know: They’re important; possibly the most important cases the Roberts court has heard. They’re certainly the most significant civil rights cases since Lawrence v. Texas, the 2003 case that overturned state laws banning gay sex. All this, and the major issues—standing, federalism, the Obama administration’s shifting position—are being more ably covered elsewhere (see this excellent Plain English summary of the Prop. 8 challenge for a good overview of today’s case).
No, instead I’d like to help you listen to the oral argument audio yourself. Let’s start with the obvious question: Why would you want to?
I think the best reason is simple: It’s actually pretty entertaining. You’re listening to some of the smartest people in America debate some of the most difficult issues of our times. You can listen to the Justices discuss gay marriage, gun rights, or video game violence. If you like Intelligence Squared, you’ll probably like the Court’s oral arguments. And, you get to do this for free.
Indeed, the oral arguments often sound like Intelligence Squared, a debate podcast the New York Times has billed as “Pointed Political Debate, Minus All the Shouting”. The Justices ask pointed questions without the pandering and cowardice found in, for example, this Mitt Romney gem discussing his views on the Bible (let alone the robotic, anodyne “debates” in the House and Senate). Supreme Court Justices serve for life, and generally feel no need to spare anyone’s feelings.
So, it’s free, it’s interesting, and, hey, it’s educational to boot. This may be the best part about it. Listening to Justice Scalia talk, I can’t help but respect his insight, even when I disagree sharply with his conclusions. Listening to the Court will broaden your mind in a way you’ll never get from even the best-constructed blog post or podcast.
The only trouble is, there’s a bit of a learning curve. It’ll stretch you, to be sure, but it’s worth it. Let’s dive in with a quick overview of the oral argument format.
The oral argument format is pretty straightforward:
- The case is read into the record by the Chief Justice: “We will hear argument now in case XY-ABCD, So-and-so versus Such-and-Such.”
- Each side is given exactly half an hour to make their case. Oral argument audio thus runs a little over an hour. For exceptional cases (Obamacare, gay marriage), this time limit may be longer.
- The attorneys present their case, beginning with the plaintiff. They are almost immediately interrupted by questions from the Justices.
- The justices and the attorney go back and forth with questions and answers. Sympathetic justices may step in to help attorneys who are struggling to defend a cause they like, but generally the attorney has to keep their head as the justices ask whatever’s on their mind.
- When the half hour is almost up, the attorney will usually reserve a few minutes. This time is used for rebuttal—to respond to one or two of the opposing attorney’s points; or to mention something forgotten during the main argument.
Thus, the cycle of oral argument is:
- Introduction of the case.
- Plaintiff’s argument
- Respondent’s argument
- Plaintiff’s rebuttal
- Respondent’s rebuttal
There are three essential elements for your first oral argument sitdown: The audio recording, the transcript, and a willingness to focus.
You can download oral argument audio from the Court’s website. Happily, you can also get .pdf transcripts from the same place. Or, you can look up the case on Oyez, which combines the two into a single presentation.
The transcript is essential to start, because one key difficulty is learning to distinguish the Justices’ voices. Some will come quickly: Ginsburg is keen and slightly raspy, Sotomayor is buttery-smooth but a little ticked off. Others are harder (I’ve always had the hardest time telling Alito and Scalia apart. The trick is to remember that Scalia is sharper, meaner, and funnier. For a given value of “funny”.). The transcript helps sort this out.
SCOTUSblog also has great coverage of most recent cases, often with Plain-English summaries of the issues. In the same way that watching Shakespeare is better when you know the plot and can concentrate on the dialog, listening to Supreme Court arguments is best when you already know the key issues. Google it.
Only one thing remains to do: Listening! Find a case that appeals to you, and where the issue is clear.
I recommend Schwarzenegger v. Entertainment Merchants Assn. as a good start. This case is classic free speech: Video game makers want to make violent games. The government wants to protect children from violent games. Both interests have value; how should the court weigh their value?
Question to consider when listening:
- Is there artistic value in depicting violence, and is that value when the violence depicted is extreme? Even as extreme as that in Postal 2, which the Court noted allows players to attack innocent bystanders “pour gasoline over them, set them on fire, and urinate on them”.
- What is violence? Is Super Mario Brothers violent? What about classic Wile E. Coyote cartoons? Grimm’s Fables, whose version of Snow White ends with the wicked Queen dancing in red-hot iron shoes until she dies?
- Is it up to parents to protect children from excessive violence? If parents fail, can the government step in?
- Is violence better-protected by the First Amendment than pornography (the Court says yes, incidentally)?
Moreover, the legalese involved is fairly minor. So go download the argument audio, the transcript, and the SCOTUSblog summary. Or, get the Oyez audio+transcript. The main bit of legalese to look up would probably be the Miller Test, which decides whether a work is obscene.
Finally, sit down and listen. Or, better yet, listen in your car on a long drive, and have your wingman consult the transcript when needed.
Enjoy the argument! You’re here for entertainment, to enjoy the cut-and-thrust of good debate and to have your mind stretched a little bit. So have fun!
Coming soon: Supreme Court Cheatsheet! This post taught you how to listen to the Court; now, learn about who you’re hearing.
In order of presentation
Gay pride 246 - Marche des fiertés Toulouse 2011 by Guillaume Paumier. Wikimedia Commons, CC-BY-3.0.
Intelligence Squared debater from Intelligence Squared homepage.
Supreme Court Justices, 2009 Portrait. Public domain.
Snow White Iron Shoes. Public domain.
Supreme Courts are referred to by the tenure of their Chief Justice. The current Court began with Chief Justice Roberts, a George W. appointee, in 2005. It was proceeded by the Rehnquist Court (1986–2005). ↩
An oversimplification. Technically the court overturned sodomy statutes, which is legalese for oral and anal sex, especially between homosexuals (broadly; this area of the law is fraught with exceptions and ambiguities). In Texas, the statute only applied to gay couples. I lied when I said I wasn’t going to write about the cases: I’m just relegating my coverage to footnoting legalese. ↩