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O C T O B E R   1 9 9 4

Electronic Hash

The much-heralded recordings of Supreme
Court oral arguments flagrantly
distort the record

by Edward Lazarus

AS a former law clerk to Justice Harry A. Blackmun, I followed the publicity attending May It Please the Court ...  -- Peter Irons's edited version of twenty-three famous Supreme Court oral arguments -- with avidity. The snippets Nina Totenberg played on National Public Radio made great teasers. The journal of the American Bar Association lauded the tapes as "just the kind of learning tool that schools need to teach about the Constitution."

But what exactly are students of the Court listening to and absorbing? After all, Edward Irons's tapes will surely be the closest most of his audience, even the lawyers, ever get to the Court itself. Did Irons -- despite the enormous difficulty of reducing arguments to a quarter or less of their original size -- really manage to capture the significance and complexity of many of the Court's most historic cases?

The answer is worse than I feared; and the publisher, The New Press (which according to the copyright page of the book accompanying the tapes is a "nonprofit" publishing house "operated editorially in the public interest"), should in good conscience issue a recall. Irons, a professor of political science at the University of California at San Diego, has pulled the wool over the eyes of a legal and journalistic community that is enthralled by the idea of his enterprise but has not bothered to check his work.

There is nothing inaccurate about Irons's dedication: "To Justice William J. Brennan, Jr., and Justice Thurgood Marshall, with gratitude and admiration for helping to preserve our Constitution as a living document that protects the rights and dignity of every American." But Irons could hardly have declared more clearly that he has taken sides in the current debate over constitutional interpretation and the Court's role in our constitutional system. Held up to a mirror, this dedication might very well read, "Down with Justice Antonin Scalia and Chief Justice William H. Rehnquist for enslaving our Constitution to the intent of its long-dead framers and for allowing tyrannous majorities to trammel individual rights." However noble the expressed sentiment, it's a poor perspective for the editor of educational material.

Worse still, a few pages later Irons reveals an astonishing carelessness with constitutional law. "The Constitution only has meaning and strength if officials can be forced to obey its commands," he writes in his first chapter. "And only the courts have the ultimate power of enforcement." A more inaccurate statement about the judiciary is difficult to imagine. In keeping with the separation of powers that underlies the entire structure of our government, the federal courts, including the Supreme Court, have no enforcement power and, as Hamilton emphasized in The Federalist 78, "neither FORCE nor WILL but merely judgment." Precisely because judges lack such power and, as Hamilton continued, "must ultimately depend upon the aid of the executive arm even for the efficacy of [their] judgments," we have entrusted these unelected officials with ultimate responsibility for defining our laws and Constitution.

But Irons could be forgiven this extraordinary judicial aggrandizement (which seems to inform his entire view of the Court), and his almost comic misstatement of the premise of Marbury v. Madison (no, this case was not even remotely about whether Congress has "the power to tell the Court how to decide cases that involved the executive branch"), and even his blithe acceptance of the dangerous oversimplification that "the law changes as judges and their prejudices change," if only he hadn't messed with the tapes.

But he did, blatantly and repeatedly. Irons did not edit the oral arguments - he fictionalized them. Through the magic of modern audio technology he cut and spliced to create seamless-sounding speeches that were never delivered and telling exchanges that never occurred. The order of arguments is switched around. Questions and answers are shuffled. Strong arguments are made to look weak, weak ones strong, and the tenor of many is so changed that they bear little resemblance to what was actually said in the courtroom. Upon careful examination of a representative sample, Irons's tapes turn out to be not Supreme Court history but rather an electronic hash heavily flavored with his own biases and predispositions.

THE argument in Cooper v. Aaron, the 1958 Little Rock desegregation case, which many have singled out as a highlight of the tapes, is painfully illustrative. The facts underlying this case compose one of the sorriest episodes in the struggle to desegregate public schools after the Court's landmark decision in Brown v. Board of Education. When the 1957 school year opened, the National Association for the Advancement of Colored People (represented by Thurgood Marshall) had obtained a court order to admit nine black students into Little Rock's previously all-white Central High School. In response, and apparently to ensure his own reselection, Orval Faubus, the governor of Arkansas, called out the National Guard, which, together with a racist mob, kept the black students out. Three weeks later a reluctant President Eisenhower dispatched U.S. Army paratroopers to escort the black students into Central High, where gangs of segregationist toughs subjected them (and any whites who made overtures to them) to a year of vicious harassment.

Against this background the Little Rock school board went to federal court, asking that the nine blacks be reassigned to segregated schools and that desegregation be delayed two and a half years. The federal district judge Harry Lemley, citing conditions of "chaos, bedlam, and turmoil," agreed to the postponement. The Court of Appeals for the Eighth Circuit, however, reversed Judge Lemley, and the case moved to the Supreme Court.

As Irons's Cooper v. Aaron tape begins, Irons himself, as the You Are There-style narrator, portentously sets the stage for the listener. "It's September 11, 1958," he intones. "The Court's regular term begins in October. But Chief Justice Earl Warren has called a special session for argument of this case."

After Irons summarizes the history of the case, the argument begins. Richard Butler, an attorney for the Little Rock school board, argues that the Court's own decisions contemplate gradualism in the desegregation process. In a passage lasting more than two minutes Butler tells the justices, in essence, that "'deliberate speed,' as used by this Court ... allows for the flexibility and the [thirty-month] delay provided in the decision by District Judge Harry J. Lemley."

Irons as narrator then interrupts, telling the listener that "Butler asked for a stay of court orders while Arkansas lawmakers debated ways to block school integration. Chief Justice Warren did not conceal his doubts."

A colloquy ensues between Butler and Warren. Butler admits that the nine black students from Central High have been assigned to an all-black school for the coming year.

Warren: "Well, isn't that, isn't that action toward segregating them again?"

"Oh, yes, sir, it is," Butler responds.

Let's stop the "edited" tape here for a moment and check it and Irons's accompanying transcript against the original transcript of Cooper v. Aaron. The first thing we learn is that Irons never uses ellipses in his transcripts to indicate omissions. Although Butler did open his September 11 argument with the subject of gradualism, Irons has omitted numerous paragraphs from Butler's remarks, including several questions from Justice Felix Frankfurter and corresponding answers, all of which fall smack in the middle of what Irons presents as a single speech.

Even more misleading is Irons's presentation of Butler's subsequent colloquy with Warren. It did not happen -- at least not on September 11. The exchange actually occurred two weeks earlier, on August 28, in an entirely separate oral argument involving the same parties but somewhat different issues.

You see, Cooper v. Aaron was an extraordinary case not only because of its intrinsic legal and political significance, not only because it is one of a handful of cases for which the Court convened a special session, and not only because the opinion is the only one ever to have been signed individually by all nine justices, but also because it was argued twice, for several hours on each occasion, in the span of two weeks.

WHAT happened is this: As noted above, the NAACP appealed Judge Lemley's decision to delay desegregation to the court of appeals, which reversed Lemley's ruling. At the same time, however, the court of appeals "stayed its mandate" (legal jargon for suspending the effect of its decision) pending consideration by the Supreme Court.

With the school year fast approaching, the stayed mandate (temporarily allowing Lemley's order to remain in effect) threatened to give the school board a substantial de facto victory. The Court ordinarily would not consider the school board's appeal for many months. Accordingly, the NAACP asked the Court either to order the court of appeals to lift the stay of its mandate immediately (thereby reversing Lemley's order) or to hear the merits of the delay issue before school opened.

This, then, was the situation on August 28, when the Court first heard from Butler, Marshall, and also Solicitor General J. Lee Rankin, on behalf of the United States. Late that same afternoon the justices met in conference and opted for the second alternative: to tackle the merits of the delay issue before the start of school. Immediate briefing was ordered and a second argument scheduled for September 11.

Now back to Irons's tape. After the colloquy with Warren, Butler's argument is broken into four additional speeches, punctuated by interruptions from Justice Frankfurter and Chief Justice Warren. Every word of these exchanges from Irons's "September 11" argument was actually spoken on August 28 (though within the August 28 material Irons has manufactured several juxtapositions). Furthermore, Irons gives Butler yet one more speech, which Irons as narrator calls Butler's "final appeal for delay," and which Irons as editor places neatly at the very end of his dummied-up September 11 session (that is, after remarks by Marshall and Rankin). This final appeal, too, was delivered on August 28.

Irons plays similar games with the three passages that Marshall delivers on the tape. The first speech, two eloquent paragraphs recounting the ordeal of his student-clients, is actually an excerpt from Marshall's opening remarks on August 28 thrown together with material from Marshall's September 11 argument.

What Irons includes as Marshall's second speech was in fact delivered on September 11. But then Irons puts us back in the time tunnel. What purports to be Marshall's third and final speech is from August 28.

Is Irons guilty of something more than gulling listeners into thinking that they're hearing the actual proceedings?

LET us return to poor Richard Butler and the colloquy with Warren in which he agrees, almost gloatingly ("Oh, yes, sir, it is"), that the school board is trying to resegregate its schools. What Irons omits (again without ellipses) is the rest of Butler's sentence: "Oh, yes, sir. It is, it is, and that was done under the order of Judge Lemley's decision." And here is an instance where the difference between August 28 and September 11 matters. On August 28 the Court was in the position of trying to figure out what would happen if it did not order the court of appeals to lift the stay of its mandate -- and the answer Butler gave (not gloatingly but simply as a matter of fact) was that under Lemley's still-standing order the black students would be assigned to an all-black school. By September l l the issue of what would happen if the Court did not act had become irrelevant. The Court had already decided to act -- to decide for itself before the start of school the merits of Judge Lemley's delay ruling. In other words, by inverting chronology and carefully splicing, Irons makes Butler out to be a segregationist heavy -- a fact many times belied in the Court on both August 28 and September 11.

Irons keeps his thumb on the scale throughout the argument. In the very next speech, which Irons as narrator introduces as "Butler restat[ing] his appeal for delay," Irons as editor has Butler arguing that "it is impossible for the school board of Little Rock to operate a school program for the two thousand students at Central High School on an integrated basis at this time. ..." But Irons as editor has snipped off the beginning of Butler's sentence. What he really said was that "Judge Lemley found, and also the Eighth Circuit Court of Appeals found, that it is impossible for the school board ..." In short, far from expressing his own opinion as to the state of the Little Rock schools, Butler was engaged in the much more neutral activity of restating the findings of the lower courts.

Even these low blows don't satisfy Irons. Here is how Irons as narrator shapes the rest of Butler's argument.

After Butler argues that the Court's decisions have been ambiguous, Irons as narrator tells us that "Justice Felix Frankfurter had little sympathy."

After Butler suggests that without further delay in implementing desegregation Little Rock's school system will be destroyed, Irons as narrator tells us that "Chief Justice Warren did not want mobs to decide legal questions."

Before what Irons as editor inaccurately portrays as Butler's September 11 summation, Irons as narrator tells us that "Butler's final argument provoked a heated reply from Warren."

The problem here is not that the Court never expressed frustration and even anger at some of Butler's arguments. It did. No, the problem is overkill: the selection of Butler's worst moments from several hours of argument and Irons's narrative suggestions that the listener, like the justices, should dismiss what Butler is saying.

Contrast this with Irons's loaded narration of Marshall's presentation. Before Marshall's opening,

Narrator: "Thurgood Marshall speaks for Little Rock's black children...."

Before Marshall's second and most substantive speech,

Narrator: "Marshall spoke to the Court like a teacher."

And before Marshall's third and final soliloquy,

Narrator: "Marshall appealed to the rule of law."

Notably, the real oral argument in Cooper v. Aaron is much more interesting and dramatic than the good guys-bad guys cartoon Irons offers. As the Court recognized again and again in the course of the argument, Butler was not advocating racism. His client, the school board, was not party to the militant defiance of Governor Faubus and the bigoted mobs he incited, nor did Butler defend them. Before the Court, Butler claimed no more than that given Arkansas politics of the moment, desegregation should be delayed to avoid further violence in the schools. Whatever the merits of this position, Butler presented it to the Court in good faith and, far from what one would think after hearing Irons's tape, the Court accepted it in precisely that way.

On the other side, Thurgood Marshall, though supremely lawyerly, was even more impassioned than he seems in Irons's version. After reading the full transcript, one readily understands why many consider him the finest lawyer of our time. Why Irons thought he could improve on the real Marshall is beyond me.

THE polishing up of other performances, though, is more easily explained. Take the argument of the radical attorney William Kunstler (in Texas v. Johnson) that Texas's criminal law against flag burning violated the free-speech rights of his client Gregory Lee Johnson. Irons's Kunstler "jumps" on a concession from the other side, "attacked" the Texas law, and "debated" with Chief Justice Rehnquist in the course of four long set speeches and one brief exchange. What Kunstler really did was make an ass of himself, cavalierly alienating the bench in a close and important case, which Johnson won 5 - 4 despite his lawyer, not because of him.

Here, too, Irons demonstrates his unique sense of chronology. The three paragraphs of what he presents as Kunstler's second speech are spread over nine pages of the actual Supreme Court transcript, and not in the same order (the first paragraph appears on page 30, the second on page 39, the third on page 35).

And the parts of the argument Irons chooses to omit are telling. Is it mere coincidence that in Kunstler's debate with Rehnquist, Irons's one and only cut happens to be the part where Rehnquist catches Kunstler fudging the holding in a key precedent? Irons also omits the portions of the argument in which Kunstler starts commenting on the oral argument in the case that preceded his on the Court's docket and in which he repeatedly insults the sensibilities of those justices -- including the potential swing vote Justice John Paul Stevens -- who happen to regard the American flag with somewhat greater reverence than Kunstler does.

Instead Irons focuses on Kunstler's long rhetorical tributes to the First Amendment. These jury speeches, full of legal pabulum but containing little hard reasoning, may impress high school students, but they didn't impress the justices. Inadvertently, I suspect, these speeches raise one of the more interesting issues posed by Kunstler's performance -- namely, whether advocates who, like Kunstler, are seeking as much to vindicate a political cause as to win the case at hand tend to be ineffective advocates before the Court.

I could go on bewailing what might have been had Irons put aside his ideal of the Supreme Court as all-powerful knight errant and simply let the arguments speak for themselves. I could raise other quibbles, such as Irons's dangerously erroneous suggestion that Roe v. Wade "struck a compromise" on the crucial question of whether a fetus is a "person" under the due-process clause of the Fourteenth Amendment. Roe's unequivocal conclusion that a fetus is not such a "person" constitutes one of the most important features of the Court's decision. Instead I would like to thank Irons for giving me a reason to review the actual oral arguments for myself. We may not have had in the modern era a Daniel Webster, bringing the audience to tears with his closing in the Dartmouth College case ("It is, sir, as I have said, a small college, and yet there are those who love it"); still, the arguments bring to life many of the legal giants of our own age: Archibald Cox, Anthony Amsterdam, Justices Harlan, Black, Warren. These advocates and jurists are only diminished by Irons's tawdry effort to improve on history.

Return to "In Your Court: Last Rights"

Copyright © 1994 by Edward Lazarus. All rights reserved.
The Atlantic Monthly; October, 1994; Electronic Hash; Volume 274, No. 4; pages 36 - 41

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