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Released Audio Tapes Shed Light on Court Hearings

February 23, 2007 at 12:00 AM EST
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TRANSCRIPT

KWAME HOLMAN: No camera ever has been allowed to record the proceedings inside the Supreme Court. For most of its 217-year history, only sketch artists and note-taking journalists have been permitted to document the court’s oral arguments.

But in 2000, intense public interest surrounding the Bush v. Gore case prompted the court to release an audio recording of that argument. And since then, similar recordings of high-profile cases also have been released.

ATTORNEY: Mr. Chief Justice, and may it please the court…

KWAME HOLMAN: We chose, as an example, the arguments in a December civil rights case, which pitted a group of white parents against the Seattle, Washington, school board. The parents claimed their children were kept from attending schools of their choice because of their race.

Attorney Harry Korrell can be heard stating their position.

HENRY KORRELL, ATTORNEY: The central question in this case is whether diversity, defined as the school district does, as a white, nonwhite racial balance, can be a compelling interest that justifies the use of race discrimination in high school admissions.

KWAME HOLMAN: With the exception of Justice Clarence Thomas, who rarely speaks during arguments, this court is especially active, according to Marcia Coyle of the National Law Journal. A NewsHour regular, she’s covered the court for 19 years.

MARCIA COYLE, National Law Journal: These justices just have a lot of questions, and they don’t like dramatics, either. They don’t want you to get — a lawyer to get up there and give a speech. They want the lawyer to go right to the heart of the case. And usually the lawyer has about 30 seconds before the questions begin.

JUSTICE ANTHONY KENNEDY, U.S. Supreme Court: Isn’t it odd to say that you can’t use race as a means?

JUSTICE ANTHONY SCALIA, U.S. Supreme Court: Is there anything unconstitutional about that objective?

JUSTICE STEPHEN BREYER, U.S. Supreme Court: Now, what is your response to that?

MARCIA COYLE: Washington lawyer Mark Levy has argued before the court on 15 occasions.

MARK LEVY, Attorney: I think the average these days in the court is to have about 90 questions or even more in a 60-minute argument. So that’s about a question-and-a-half every minute.

The nature of that really puts a premium on a facility at oral argument and intense preparation. You need to be able to answer a question quickly and get the best part of your answer out in the first sentence or two, because that may be all the answer that you get a chance to get out.

HENRY KORRELL: Justice Ginsburg, our preposition is that that is prohibited by the Constitution, absent past discrimination by the school district.

JUSTICE ANTONIN SCALIA: You would object, then, to magnet schools?

Using background research

KWAME HOLMAN: Going into oral arguments, the nine justices typically are very well-versed on a particular case. Their law clerks have provided exhaustive background research, and lawyers from the opposing sides have submitted detailed briefs laying out their arguments.

Each justice is prepared with his or her own questions and queries. One common approach is to pose a hypothetical as a way of figuring out the boundaries of a certain argument.

In this exchange, the newest justice, Samuel Alito, explored how the Seattle school district classifies its students.

JUSTICE SAMUEL ALITO, U.S. Supreme Court: Suppose you have a school in which 60 percent of the students are either of Asian ancestry or Latino ancestry, and 40 percent are white, as you classify people, and there are no African-American students at all. You would consider that to be a racially balanced school, would you not?

MARK LEVY: In this case, for example, he was focusing on Asians and Hispanics and others who generally are not part of the affirmative action in the black and the white sense.

So I think he was trying to show that these are more complicated decisions than what the government decision-makers usually have given thought to, leading to the conclusion that he probably will not be in favor of them.

The impact question

KWAME HOLMAN: Also in the course of arguments, justices commonly will ask what's known as the impact question.

MARCIA COYLE: Some justice will ask, if we rule this way, or if we rule that way, what's going to happen? You know, what's the impact here?

KWAME HOLMAN: Justice Stephen Breyer.

JUSTICE STEPHEN BREYER: When you have thousands of school districts relying on this to get a degree of integration in the United States of America, what are you telling this court is going to happen when we start suddenly making, departing from the case? You want us to overrule it? Why? Why?

PAUL CLEMENT, U.S. Solicitor General: I think anybody that relied on that language -- it said achieving a racial balance for its own sake is not constitutional. I think those school districts would have been misguided in relying on that language.

KWAME HOLMAN: Mark Levy said the answers lawyers give to the impact questions help the justices choose which issues to focus on when writing their opinions.

MARK LEVY: On the issues they decide, do they decide them broadly, to try and anticipate more cases for the future? Do they decide it narrowly, more limited to the particular circumstances of this case? Do they relate this case to other areas of the law that are relevant but not directly implicated?

All of that is completely in the control and discretion of the justices, and that's really the place where I think the oral argument has the most effect. It does very much influence the kind of an opinion the court ends up writing in the case.

Justice Scalia's candor

KWAME HOLMAN: Justice Antonin Scalia made clear during the Seattle school argument that, in his mind, it was an affirmative action case, where qualified white students were being left at a disadvantage. After 22 years on the court, Scalia typically does not hide his point of view.

JUSTICE ANTONIN SCALIA: Why do you agree that this is not an affirmative action case? Is it not -- wherein does it differ?

MARCIA COYLE: Unlike some of the justices, he doesn't play devil's advocate very often on the bench, posing hypotheticals for one side and then for another side. He pretty much says what he thinks.

MARK LEVY: He's not hiding the ball when he asks you a question.

JUSTICE ANTONIN SCALIA: I thought that the school district was selecting some people because they wanted a certain racial mix in the schools and were taking the affirmative action of giving a preference to students of a certain race. Why doesn't that qualify as affirmative action?

HENRY KORRELL: If that's what affirmative action is, your honor, then...

JUSTICE ANTONIN SCALIA: Well, I don't know what else it is.

KWAME HOLMAN: Hearing Scalia's take, Justices David Souter and Breyer weighed in, in disagreement.

JUSTICE DAVID SOUTER, U.S. Supreme Court: One of the characteristics of the affirmative action cases was the displacement of some other otherwise generally acknowledged relevant criterion, such as ability is shown in test scores, grade point averages, and things like that, and that was a characteristic of those cases. It is not a characteristic of this case, as I understand it.

JUSTICE STEPHEN BREYER: I think that the point that Justice Souter is trying to make, as I understand...

MARK LEVY: By tradition, the justices don't talk about cases before the oral argument. So when the nine justices get on the bench, they don't know what the others are thinking.

So this is the first exposure that any of the justices has to the views of the other nine. And so that makes it an important part of their decisional process, to see what issues or what arguments are attracting the other justices, what are causing problems.

What of the several issues that might be in a case do they think a court might want to decide? Is there an issue that five votes can coalesce around?

KWAME HOLMAN: So far this term, the Supreme Court has released the audio from four cases, making those arguments accessible to the vast majority of Americans who might never get access to a seat in the court.