still think he was one of the most impressive, forceful, passionate oral advocates i have ever seen at the court and made he think we should have a lot more begin,try out argument in the court just for fun! >> i want too, apologize to you all, the tech people have the audio working right before we started, and, hopefully we will get it running for some of you others and i apologize, it was all good. and now something has happened in the interim, and so go ahead, paul. >> thanks, dahlia. >> thanks, paul, and thanks to -- tim, for putting together this show. for all of us to promote the book, and to draw our public more into the internal workings of the supreme court. i chose the casey decision, decided in 1992. and i did so, for what is, for me at least the very obvious reason. beginning with justice o'connor's ascension to the bench in 1981 it was very clear roe vs. wade the 1973 decision establishing a woman's right to have an abortion, was under siege. and each time a new opinion came out, of the court, the court appeared to be less and less committed to sustaining the right to terminate an abo -- in an abortion and in fact it finally got to the point where the majority was down to 5. 5-4. and, there had been indications of -- particularly in 1989, that o'connor might well provide a vote to overturn roe vs. wade. and indeed, the administration, reagan administration, had tried several times to persuade the court to directly overrule it. i chose this particular case for a book about oral argument, because of the audacity of the counsel who argued in favor of maintaining roe. the women's rights movement very much fearing that roe was in jeopardy, had shaped this case to be a genuine test case, and we often too loosely talked about test cases, almost as if everyone was a test of some new jurisprudence principle and it was put together by a women's rights principle of a fundamental test of whether roe was still a viable precedent and, in fact, when katherine colbetter but together the brief with her colleagues they asked a simple question and it is entirely unlike any question you will see at the front of any supreme court petition for review. has the supreme court overruled roe vs. wade in i mean, if you put that as a factual statement, the answer, clearly, was, no. it has not overruled roe vs. wade. but it was very clear, that the women's rights movement thought that there was a risk, that the court wouldn't address the issue -- when it addressed the issue would overturn roe vs. wade but they also had very much in mind the fact that 1992 was a presidential election year and they were determined to turn this supreme court case and a lawsuit into a political campaign issue. to try primarily to help bill clinton win the white house. and in fact there is some evidence from the political world that this case and the outcome of this case did help. but, there was another aspect of katherine colbert's argument which enticed me into writing about it. the hardest thing that a lawyer appearing before the supreme court has to do is to keep control of the argument they want to make because there are nine justices, 8 usually because justice thomas doesn't very often participate in 0 oral argument but there are at least nine very smart people who have already don't thinking about this case and are coming to the argument completely prepared, to befuddle you and indeed to drive the argument in the direction that they would very much like to do. it is important to remember the supreme court justicings do not talk much about a case before they go into oral argument and so oral argument is really an agenda-setting moment and really does shape at least the opening of the conversation that the justices will have when they go back behind the curtains and decide how they're going to vote initially on the case. so, a lawyer who really want to shape that argument, who wants to put some control under the first argument the justices are going to have among themselves, must keep control of their argument. and it was very apparent from an early point of the argument, and the book has an excerpt from justice o'connor, saying, well, i don't want you to talk about the standard, i want you to talk about the specific issues before us, involving the specific pennsylvania law that is under review here. >> i have to interrupt, they will make sure the audio is turned on and i'll play the clip then. >> okay. >> sorry. i think it is that computer down there. >> try it now. >> [inaudible] is whether to apply... (inaudible) roe against wade and nevertheless,... [speaking garbled]. >> the central question is what is this standard -- this is standard the court uses to evaluate the restrictions to the issue. and, therefore, one cannot -- >> but the standard may affect the outcome and may not, but, you still have to deal with the specific issues and i wonder if you are going to address the issues -- >> [inaudible]. >> but the standard the court applies, will settle the outcome in the case... >> you can see, or hear in that exchange, the tension that was evident in the courtroom, on that day. because o'connor is a very -- was a very precise kind of judge and the court in fact in granting review had rephrased the question that it was going to answer, in the case, getting away from the was roe still a valid thing as to whether or not the specifics of the pennsylvania statute were constitutionally valid and o'connor was pushing and it turns out, justice kennedy also was pushing, but, as you could hear, a rather deft way, katherine colbert said well, i will get to your point and i will argue the pennsylvania statute, but i want to get back to the standard, which, by which she men the standard, are we going to sustain roe vs. wade. and the argument went that way, throughout. and justice kennedy also jumped in, with a similar kind of attempt to push her back onto the specifics. >> i don't question, then the importance of your arguing that there is fundamental rights, and as you have done, fundamental rights... [inaudible] any number of arguments in the case [inaudible] and i don't think our decision in the [inaudible] is inconsistent with fundamental rights, but our understanding of fundamental rights, would, and... dimensions, on a case by case basis and there are a nib of positions here, that i think you should address. >> well, indeed -- >> the critical factor is whether as a result of the... [inaudible] the standards of roe, that is, scrutiny. bus under the -- under that standard, there is no dispute among the parties, under the standard, the provisions, 24 hour mandatory delay has been found to be constitutional and significantly... [inaudible] consent requiring [inaudible] at issue in this case, and has been found unconstitutional [inaudible]. >> statutory provisions and not necessarily under... [inaudible] roe vs. wade. >> it us our position, your honor, if the court were to change the standard of experience, which are the standard -- the core that... [inaudible] that will under cut the whole [inaudible] and overrule roe vs. wade and to adopt the standard and abandon the (inaudible) a lesser standard, testing the rational relationship which i avenue discussed with this court on other occasions... [inaudible]. >> what is the -- the beauty of roe, means protection -- the protections of roe flow from the fact that the court gives proof that the particular state regulations interfere with the rights and roe establishes and creates a burden on government to come forward with the compelling... [inaudible]. >> roe can... [inaudible] i'm suggesting to you that that is not the only logical possibility in this case. >> you can see the pattern that was set early, continued. i should mention, to be fair about it, there were two other lawyers arguing in this case, and, the chapter that i wrote deals briefly with them, but, the performance of catherine colbert i think really ultimately proved the worth of her choice, because, she did shape the conversation thereafter that occurred among the justices. finally, in the end, justices kennedy and o'connor and david souter got together and fashioned a way by which the court could sustain roe vs. wade, at least in substantial part, and they did indeed strike down not only the one part be the requirement that a woman contemplating an abortion notify her husband that she was doing so. it is -- to my mind it is a classic demonstration of deciding what you want to argue, going in to make this argument and no matter how hard the resistance is to you making your argument, to holding to it, sticking to it until the very, really this bitter end, and then, hoping for the best. and it was a very, very classical performance, by a really talented lawyer, and in fact, to this day, a good many years later, roe still survives in the form of -- that it emerged as a consequence, a direct consequence, i suggest of katherine colbert's argument. >> thank you. >> thank you, paul and thank you, tim for included me on this project. the year 2000 was also a presidential election year. see it wasn't terribly tough to select bush versus gore 2000 as one of the cases to write about for this collection. indeed, it was a case unique in the history of the country. for starters. in american politics. and, in the circumstances of the supreme court. obviously, this was a great -- of great importance, one might even suggest as a political reporter, which was part of my responsibility, in addition to covering the court, that the best five weeks of the 2000 election campaign were those five weeks between election day and december 12th when the court handed down its opinion in bush versus gore, because then we saw pretty much laid out in front of us and without the bamboozlement of a the lot of political advertising, what the courts were going to do. both here in washington, and in the state of florida. and, we were kind of commuting, literally, if not figuratively, or figuratively, if not literally between the courts in tallahassee and other places in florida. and, the supreme court. in the span of ten days, the u.s. supreme court heard arguments related to the election, not once, but twice. that in and of itself is extraordinary. and, this was attended with not something that had been ripening for five or ten or 15 years, in lower courts, but, was still festering on the political scene only days after the election. so, that not only were votesers, the public, this world -- voters, the public, the world at large, but lawyers who had to deal with i.t. and the justices who had to decide on it all dealing in a very contemporary setting of uncertainty and actually happened and what did the ballots, we saw people looking through or trying to look through represent and when were the kinds of things that had to be judged here in the u.s. supreme court itself? added to that, from a broadcaster's perspective, i was the cnn correspondent, was the opportunity to not just sit in the court but run out in front of the court and have those tapes played back on the air, the audio, alas, it was only audio, not video as well but the audio was released as soon as the arguments were concluded. so, no sooner had justice rehnquist uttered the words the case is submitted than within moments we were able to turn around and hear justice rehnquist say, we will now hear arguments in the case of bush versus gore 2000. and so that unfolded and people got a chance to hear what was happening in the court. and what they heard from my judgment was, two extremely competent attorneys arguing. ted olson on behalf of the bush campaign, and david boies on behalf of the gore campaign. somewhat in contrast to your attorney, dahlia these were extremely, accomplished faces although david boies only argued once at the u.s. supreme court, he had been handling arguments in the florida courts and was as familiar as anyone with florida law as it unfolded. what he encountered, david boies in particular and i spent time talking with each of them subsequent to the arguments, in preparation for this book, was what had become a bit of a two-track possibility in the way that the court was going to decide the case of bush versus gore. it was either going to be an article 2 issue, as to whether the court or the court in florida, had adhered to constitutional provisions, really, kind of a structural approach, as to whether the court in florida was respecting the desires, the wishes of the florida legislature, in terms of how the electors would be chosen, for the vote on the presidency, or, whether there was an equal protection issue, in the way everyone who cast a vote within the state of florida but, particularly, in florida, the counties -- four of the counties was being judged and whether each ballots was given the same scrutiny and equality of potential for being counted because we were dealing with not only ballots that had hanging chads and dimpled chads and pregnant chads, which is to say, ballots that were not completely marked, we were dealing with overvotes and under votes. that is to say, some ballots that didn't have any marking for the president, and some that might have had two markings for president, through one error or another and a whole variety of different ways in which the ballots were constructed, from county-to-county and the most notorious of which was known as a butterfly ballot and we will not go into the details of that but you can get the notion, it had two wings and they didn't quite line up. and what became interesting, in terms of the argument was, which way was the court going to go? and one of the clips i'd like to play, is david boies, representing al gore, and the democratic campaign. and, as quickly as he set out to try and make an argument on one point he was diverted by justice kennedy. >> i think at that point, then you can conclude that what it has done is to change the law. but i think the standard is the standard this court has generally applied, giving deference to state supreme court decisions. >> but is it in line -- in light of article 2, i'm not so hurry and i would have hoped that that bears on the standard, frankly, when it contemplates that it is the power of the legislature, does that not mean a court has to in interpreting a legislative act, if a special deference to the legislature traces insofar as a presidential election is concerned, i would think that is atenable any way and also the concerns about section five. >> i think, your honor, that if the florida supreme court in interpreting the florida law, i think, the court needs to take into account the fact that the legislature does have this primary power. i think when the florida supreme court does that, if it does so within the normal ambit of judicial interpretation that is a subject for florida's supreme court to take. >> responding as though there are no special burden to show some deference to legislative choices. in the one -- not when the courts review laws generally for general elections but in the context of selection of presidential electors. isn't there a big red flag up there, watch out! >> i think, i think there is a sense, your honor, and i think the florida supreme court was grappling with that. >> [inaudible]. >> i think, i think it did -- >> and that is obviously justice o'connor joining the conversation shortly after justice kennedy where david boies started, barely uttered the words, thank you, mr. chief justice may i start with breck beckstorm, another case with reference to this and justice kennedy said can we begin with jurisdiction first and he says yes. of course. and the reason being, he had two real targets sitting on the bench in front of him, kennedy and o'connor. and he knew going in, that this was pretty much a 5-4 court, because, the court had also taken the unusual stem of issuing a stay on the counting procedures in florida, and that was done on saturday, arguments were on monday. and the issuance of a stay suggested that there were already five votes stacked against david boies and vice president gore, and if he was going to persuade anyone, he had to focus his attention on kennedy, and o'connor. and, if justice kennedy says, could we start here, there is only one response and that is yes, justice kennedy, let's start there, and discuss that. in fact, what eventually happened, was that the five votes that ultimately decided this case, though i would prefer not to say decided the election, that was sort of the carryover from what the florida numbers resulted in, although some people think the election was only decided by nine people, ultimately, it came down to justice kennedy, justice o'connor, and then the three much more conservative members of the court, chief justice rehnquist, justice scalia and justice thomas issuing a procurium, an unsigned opinion for the authority and the authorship later became evident was kennedy's and it was only because kennedy and/corn were comfortable with the equal protection aspect, that is, is every voted being counted pretty much like every other vote? which clearly was not the case. they were able to muster the five votes. even though there is one place, in the opinion, that says 7 of us agree... and those of us who scrambled out in front of the court afterwards found that and said, perhaps, momentarily, aha! it is a 7-2 vote, let me look, no, 1, 2, 3, 4 dis sentence in trying to parse out what -- dissent in what they tried to parse out, and it became a question ultimately on how the ballots were counted and there is an exchange between ted olson representing mr. bush and justice souter. >> we submitted, it was incorrectly interpreted federal law in doing that, what they've done, and done is the right of process whereby it is virtually impossible if not completely impossible and i think it is completely impossible, to have these issues resolved, and the constitution -- controversy is resolved, in time for that federal statutory deadline, furthermore, it is quite clear, we submit, that the process has changed -- >> if you are sincere it is within the possibility, why didn't you let the process run instead of asking for a stay. >> because we said, we'd find -- >> and justice souter said if you let it go you might have found exactly how the ballots had come out. but that was not the intent of mr. olson and governor bush at that time. many justices will say that oral argument don't change their opinions, but they help them close the gaps and narrow some of the inconsistencies, and i'm not sure but in hindsight, looking at this and listening to the argument, again, just the other night, you see justice kennedy in particular, trying to wrestle his way to a conclusion, that works for him, and, it wasn't the more seemingly draconian article 2 approach to it but, rather if there is a way that he could find the result that said equal protection was not being accorded every voter here, that was a comfort zone for him. >> tony? >> okay. well, it's an honor for me to be here as well. and it was a great fun project to work on, this book about oral arguments, it is an intense and fascinating process and i'm struck how intense it is by the fact, where we are now, we are sitting a replica, a replica of the supreme court at the georgetown university law center. where the dimensions are exactly as in the court with the lectern and the same distance from the justices as in real life and it is incredibly close and i can imagine, it is just a really nerve-racking experience for the lawyers. i always feel for them. and i'm surprised more of them haven't fainted as has happened in history. but, the case that i picked to write about in a way is a lot -- well, a the lot less known than the others. just heard about. but it is in a way, the exact opposite flip side of the coin from dahlia's case, because in this case, there was a rookie lawyer, a lawyer who had never argued before the supreme core, before, but he ended up making a spectacularly unsuccessful argument. he like michael newdow was totally passionate about the facts and the background of the case, but, it was -- just fell flat, too passionate. and makes another point about the supreme court. many cases when they get to the supreme court are on much more abstract levels than the at the trial court and the other, lower court levels, and in the trial court, the issue is the facts, you know, did the police officer do this or not? but, when you are -- when you get to the supreme court, the facts seem often fade into the background and the court is really just concerned about a legal issue, a constitutional issue. and that is what this lawyer forgot. the case briefly, to summarize, called gooden versus wildman brothers. and, it is a first amendment case, and the first amendment protects the freedom of the speech, but, also, has been found to protect in some instances the right not to speak but the right not to have the government force you to say something you don't agree with. and in the case, it was a group of california fruit farmers, producers of vegetables and fruit, in california, who every time they sell a bushel of corn or something, they have to pay a dollar or a fee into a federally backed marketing program. and that marketing program then pays for ads, commercials on television to advertise the fruit. in a generic way. much like the milk commercials you see, or beef, you know beef is what's for dinner. this group of fruit farmers did not like the ads that were being produced on their half through this marking program, the ads were featuring varieties of fruit they don't grow and didn't like the subliminal sexual images in the ads about the losingsness of fruit, and so they decided to make a first amendment challenge to the marketing program and thomas campaign, a lawyer in present know had been their lawyer for years and he was challenging the program every step of the way and knew everything there was to know about the making program and as the case got to the supreme court he wanted to hang onto the case like many lawyers do. but, some of his clients felt that this was -- now has gotten to the -- we're getting away from facts and need a really good first amendment lawyer and they hired michael mcconnell, who is now -- who then went on later on, went onto be a distinguished federal judge, but he was a tremendous first amendment expert. and so we had two groups of farmers, one sticking with thomas campaign and the other one going with the new lawyer, they both filed briefs in the case and the supreme court didn't know what to do. we have two lawyers, you know, and only half-hour for them to argue. so, the clerk of the court actually flipped a coin to resolve this unresolvable fight between the -- these two lawyers and thomas campaign won. so, he argued the case, and, almost from the outset you could see the first amendment issue of forced speech, was of no interest to him, he wanted to relitigate the program about fruit. and he was -- started to argue about stipulation 43 and exhibit 297, as if he was back in the trial court and there is one clip we have, of how unsuccessful that gambit was. the first -- for the first clip. >> what is the problem inaudibl knuble -- [inaudible]. that grow these -- >> well, justice, the solicitor asked me the question in that regard, i believe -- (inaudible) indicated there was a finding that there was disorderly markets. and, he indicated the 1954 act which doesn't deal with that subject whatsoever and the -- the records show -- >> we have an unusual situation, the justice o'connor spoke about, in the community nutrition case. and we [inaudible] we sued the [inaudible] and gave the government every opportunity possible, and as a matter of fact, stipulated, exhibit 297... made the stipulation, that stipulation, number 57. i'm sorry. 59. that was the exclusive -- [inaudible] and the district court threw out -- >> mr. kennedy -- [inaudible] hold up a brief and say stipulation number 59. we don't know what -- if you want to make a point, make it so we can all understand it. >> in that stipulation, in this -- (inaudible) said, i have a problem. i don't understand what some of you are expressing in our questions and i want to give you every opportunity to show me, this disorderly marketing going on in california [inaudible]. and the stipulation that was entered into, is that the usda relies on exhibitor... >> you can see, he was so wrapped up in the details that chief justice rehnquist became very annoyed, and told him, you know, to stop it and he kept going. back to stipulation 57. and, it unfortunately, it just kept going in that vein. he never really took on the first amendment argument. that was very crucial to the case. and, in fact, he again, got so impassioned about the fruit that he was -- his clients grew, that it became an -- a real embarrassment. and we can play -- go to the third clip, not the second, the third, where, he was arguing that his clients grow green plums, and the ads really should have been about green plums, because, green plums have a bad reputation and people think they are unripe and will have bad effect on people. so, you can play that. >> green plums and give them to your wife and you think to yourself, you want to give your wife diarrhea, but green plums... >> we don't care about green plums. i have never eaten green plums! [laughter]. >> so, he was directing to j justice scalia who was so flummoxed, why are you telling me i shunts buy green plums for my wife, i have never seen a green plum! and that is -- and you know, he wasn't trying humor but came across as terrible, terrible humor and it completely fell flat. in the end, maybe that is the bell for me to stop! but in the end, he lost the case, 5-4 and a lot of people think if true first amendment lawyer had argued the case it might have been 5-4 the other way and one quick post-script. the faction of fruit growers who objected to thomas campaign arguing the case were so upset they filed a malpractice suit against him. and one of their counts was that it was malpractice for him to fail to refer the case to a supreme court specialist. and i thought in a symbolic way, that that really symbolized that the supreme court specialty bar had arrived and it was so -- deemed so objectively better than the run of the mill lawyer that it even became a basis of a malpractice suit. the suit didn't succeed. there was a settlement. but, it seemed to symbolize that sometimes it really does matter to have a good supreme court advocate on your side. >> thank you, tony, at this point i'll ask questions of our esteemed panelists and we'll talk a little bit more about oral argument and i'll start with you a question for dahlia, you concluded your chapter with the comment an outsider could vy prevail, over a polished insider because of his passion to win. so, for instance, some of the examples you gave in your chapter, is that he violated the command not to use sound effects and he said, bam! at one point or to cause the courtroom to erupted into laughter. and applause, which he did. and so, to what extent, or what is this interplay between sort of the presentation of ideas, and being colorful and to present one's ideas well, as opposed to the ideas themselves? when you think about what will lead to your success, as an advocate before the court, what -- how do you make a trade off between those two different objectives? >> well, i think for every story that i tell, there are ten that tony can tell, and that is to say, i think that anyone going into the premium court for the first time would be ill-advised to do any of the thanks that michael newdow did and one of the things that was interesting to me was that really, we were all dying, watching the performance, and yet, it became clear that he was doing something slightly magical there. i think ---ing in thinking of an oral argument this year, where carter phillips was talking about fleeting expletives, and a change in the policy, where one could, if you were paris hilton, swear briefly, whether you could be fined for that, and it was very interesting because, carter phillips who is really one of the harlem globetrotters, he is astonishing but really doesn't ever do a lot of flash, he's just meticulously good on the argument piece, and not one to draw attention to himself or anything else, everybody was whispering going into the argument that he was going to actually say one of these fleeting expletives an he had done it at the court of appeals and not only did he do it at the court of appeals but the court of appeals turned into a sailor's bar and the judges were swearing and everyone was swearing. and one of the most -- and going into oral argument there was a -- the scuttle but was he was going to go in there and cuss like a sailor at the premium court and at the last minute he didn't and it was an interesting, i think an interesting choice, to essentially say we will not be transgressive here. it would have -- this particular court wouldn't have thought it was -- it added and they would have thought it massively detract and he made what i think was a very, very smart choice to argue the case. and not do the bells and whistles that might even work at the court of appeals and i think for me, really, the object lesson of newdow is, it really was an outlier. this not -- i don't think anyone would take away from this particular case, that you should go in representing your daughter, get emotional, yell bam! insult the chief justice and make everyone laugh and every one of those things was a cardinal sin and he pulled it off because of a perfect storm of what he was and the case was in that moment but i think this lesson that i took from carter phillips in the fleeting expletive case is don't be too smart. go in and be safe and argue the case the way you argue respectfully in front of a court. >> anyone else want to weigh in on this question? >> okay, so, let me ask you a question. as you were describing the casey case, and katherine colbert's argument, it sound like she was confrontational and combative and sticking to her guns this is the argument i wanted to make and despite your efforts to get me to deviate from these arguments i will stick to my guns here. and in contrast, charles' description of bush versus gore, and his quotes from ted olson, suggest if the justices suggest they want to go in a direction you will follow them in that direction. how do you reconcile this? is your case, the anomaly here or... how can we best understand oral. >> if you know katherine colbert you know she is stubborn writ large and she is -- she was and remains very committed to her cause. if you keep in mind this was as much a political adventure as it was a jurisprudential enterprise, katherine knew what was on the line, and it was a high risk, i mean, she was really rolling for a major loss, if she either offended kennedy or o'connor because she clearly needed both of them. and from the excerpts that we have played for our audience, it's clear both of them came into the arguments skeptical of her go-for-broke approach. i don't think it was -- well, you could probably say it was an aberration in the sense that not many causes are that emotional. i mean, dahlia's chapter is about another of the ideas, a death penalty case is, too, but, most of the time when you go into an oral argument the issue is not quite as close as it is -- as it was in this case. most of the cases are not bound to be 5-4 and the 5-4 is still an exception. this court still decides more cases by 7-2, 6-3, so, when you know going into a case, that it is likely to be 5-4, the risks just rise exponentially. so, with katherine, she simply understood as a political activity, she couldn't do anything else. and, in fact, she was lucky in the sense, no matter which way the argument went, the outcome went, they had a political issue. because if the supreme court struck down roe, then you could make the argument that we have got to get a president who cares about reproductive rights. and, so, while it was high risk in the sense that katherine colbert may well have lost the outcome, it was not a political risk because either way, they were going to have the kind of political argument, that they fashioned going in. >> that part of casey is sort of unusual. i would think. that there were two goals, being purr si pursued by the attorney and are there other instances where the lawyers arguing a case go beyond the litigation that is being deliberated. >> well, i think -- most of the time, when the case get into the supreme court it is rare, the court gets 8,000 petitions a year and they decide 75. i think, i think, most lawyers understand that what they are doing is not simply getting a resolution of a fight between party a and party b. another case this -- that occurs to me is the 2005 decision, where the court value dated taking away a woman's home so they could build a new economic development that would support the pfizer pharmaceutical giant. in that case, it was very clear that both sides went into the argument not only hoping to win this litigation between these parties, but, to establish a larger principle and so, in that sense, paul i would say that the supreme court argument given how few there are any more, given the limited scope of what the court is willing to hear, almost every case has a secondary impulse the lawyers are going to pursue. it isn't often quite as blatant as it was in casey. >> charles, let me ask you about televising supreme court proceedings. you mentioned that in bush versus gore one of the interesting things was as soon as the case was over you had the audio recordings being made available to the public. there is great deal of public interest in that case. so -- but what would you say, then, about why are the justices reluctant to have their proceedings televised? and laalong those lines what impact would it have on the justices in the oral arguments and this attorneys who are presenting their advocacy. >> this is the casey -- argued before the supreme court one by one, justice by justice, trying to get their perspective on it, those who would talk about it in in a sense. and the feeling has been, that the court -- at least up until now has been very reluctant. it has complete authority to admit cameras if it chose to. but, justice souther famously has said, over my dead body. that will not be an issue much longer. not that he is in poor health but is retiring and so, no more justice souter saying, no cameras here. souter's experience on that relates to the new hampshire state supreme court, which did have cameras and he felt that he pulled his punches in questioning, because of those cameras there and he might not have been, perhaps as confrontational or that he was just hesitant in some dimension in formulating this is questions. i don't know that every justice would take quite that approach to it. certainly, chief justice rehnquist was sympathetic to justice souter's position and said as much as -- so long as one member of this court is opposed to cameras, there will not be any cameras. chief justice roberts is not that absolute about it. but she's not particularly in favor of it. i have discussed this with him. and you have others who say, you can anticipate who they are, you'll cut me into six second sound bites and lose all the context of the argument and i don't disagree with that. but, we do that in quotations, we do that in graphics, we do that in headlines. and, if you have the completeness of it, perhaps that particular justice might not grumble as much. and now, i personally think c-span would be an ideal place to do it, 60 minute fits nicely, at least that is me argument. why not? doesn't the american public deserve to see this? >> there is not an argument -- paul, and souter makes the argument as well, it is a matter of security and, souter likes his anonymity. he is not easily recognized on the street. he likes to tell stories, about how people encounter him in grocery stores and say, you look like a fellow on the supreme court and he says, a lot of people have told me that, something like that... but, he genuinely believes if they become public personal and he is sure that that would be a product of putting their faces regularly on television, then they would be confronted with a personal security problem. >> that was a false argument, if you are a judge in columbia putting drug dealers behind bars but that is a false argument here. >> it is an argument that unfortunately, perhaps, from charles' perspective has been persuasive with his colleagues. and, so i'm not sure i'm persuaded myself by the argument, and as a matter of fact, my own sense, and i know charles agrees with this, is that if there is a constitutional right of public access to public proceedings, you cannot say that that right of access depends upon what you will do with though information that you get and so my sense is, that there should be, if -- as we know, ever since 1980, there is a constitutional right of access to sit in on court proceedings that are generally public, my sense is, that that includes the opportunity to bring a recording device and in the, to reproduce the argument else where, but, i didn't get a voted on that. >> just to add one more thing. i think charles is right, that the justices, you know, still like to be able to -- they don't want cameras in parted because they can still say no. and there aren't many other institutions that have the choice any more. but i think, the momentum of the internet, congress is getting impatient, i think, that the direction is in favor of cameras in the court and i think eventually they'll have to say yes. and in fact justice souter unwittingly gave support to the momentum by his valedictory speech he gave not far from here where he said the public knowledge about the -- state of the public knowledge about the structure of government is abysmal and we have to improve civic education. for the new generation, and, you know, one -- what better way to teach about the supreme court than to allow cameras to cover their proceedings? >> there is a lot of the argument,... >> right. >> if you get a case that involves the question of when can a plan administrator for -- sue an under what conditions can that administrator be sued. i'm not sure, anybody is going to stay up late, and turn off rachel maddow and watch this instead. >> and i would add to completed this circle since we are talking about audio, even more bizarre than the court's power to say no, over all video, is the court's completely parapatetic policy on when they allow audio and one of the things driving me insane is that you know, one of the -- the only times the public gets access to audio are in the opposite -- the erisa case, the court by some metric that is unknowable to humankind, decides which oral arguments are going to get this instant audio treatment, and there are usually two or three a year since bush versus gore but i think it is a colossal mistake to say, let's do the audio for the abortion cases and the affirmative action cases, and the cases that make people insane, and that make the justices i think, act out, and that if you are going to allow only selective audio, my god, allow audio to is representative of what 90% of the court's docket is, which is not all that sensational. but i think the currents policy of allowing audio access only on the cases in which scalia is guaranteed to say something that is really a good sound bite, or, you know, that justice souther is guaranteed to say something, that makes people think the court is a completely ideological body, the policy is absolutely the opposite of what is good for the court. >> thanks. tony, can i ask you a question about your case? justice scalia once remarked that not infrequently a lawyer who has done a terrible job both in brief and oral argument wins the case. and you know he is going back to his client and saying, you know, we did it for you again. scalia then continues, the quote saying there is no mark for quality of argument or oral presentation, it is who has the better case. and given the flawed arguments, by campaign, couldn't the justices just sweep by his faulty arguments, which is, sort of leads to the brooud broader question of, what role do oral arguments have, or play, in supreme court decision making. >> well, that is a never ending debate. and i think, you know, the general action is -- lose a case in oral argument you don't win it. and i think, this is -- my chapter reports on a case where, the oral argument might have lost it. i think, somebody with a more persuasive first amendment argument might well have flipped one vote, and that is all he would have needed. but, i mean, overall it's just -- i think the point is clear, i mean, there have been many, many cases, where we can count, hundreds, probably, that, where the poor oral argument, somebody makes a poor oral argument still wins because the case, the facts are -- the case is on his or her side. but i think that still doesn't answer the whole point, and i think oral argument does mart. >> justice powell, once told me that it made a difference for him about half the time. that he would go into an oral argument having discussed it with his clerks, and listened to the oral argument and half the time, he second-guessed himself and perhaps didn't go the other way entirely, but, at least was willing to reconsider the kind of instinct that he had harbored going into the argument. i would say, and i said this, in discussing my own chapter, the purpose of oral argument is really to shape the conversation the justices are going to have, because they -- and, i don't know that the public knows this, entirely, but, they cast their first vote very quickly afterwards. the cases that are heard on monday, they cast their vote on wednesday afternoon. and the cases that are heard on tuesday and wednesday, they cast their vote on friday. at the conference of the -- private conference and so, the court is going to put on record for itself an initial impression of where we are going to go on this. it may not be a very substantive discussion, but it is a discussion, that leads to a vote and that vote usually dictates who gets assigned the task of writing the majority and if there are dissents the dissenting opinion and if lawyers are able to shape that initial conversation and the good ones usually are, capable of that and maybe, sometimes the bad ones are as well, but i think that is why -- i think that is why this court won't ever dispense with it. you know, there used to be a time, when i was younger which well could have been many years ago. when the court disposed of some cases on the merits, summarily, without an oral argument and just decided them on the basis of the briefs. that was back in the time when they had 125, 150 cases, a term they were deciding with oral arguments, so, the court is capable of doing away with oral argument if it wants to but i think enough of the justices think it is valuable that it is an institution they'll likely retain. >> and i'll add to that, a number of justices have talked about this and i forget who had made the quote exactly, but, it goes along the lines of justice powell, and that is, you know, there have been too numerous times where the way my mind, view of a case shapes up after oral argument is doesn't from the way i thought it would shape up, prior to oral argument and what we often see, on the news, in newspapers, on the line -- on-line, not from these reporters but from others is this court affirmed a lore court decision, today 7-2 and, the readers and i have been guilty of this, in the past as well, says, oh, okay. the lower court has been affirmed or the lower core has been reversed. the case is not about 7-2 or 5-4 or 9-0. it is about the substantive law created in the case and the justice and others who have talked about how oral argument affects their decisions, it is not affecting their votes probably most of the time, but what it is affecting is their view of the law that the court ultimately sets. therefore, a justice may continue to say, look i'm going to affirm, but in the end, maybe she has been persuaded that that affirm manse or reversal does not go as far as maybe she thought it would prior to oral argument or maybe it goes further than that. so the point is, and from my own research and i know research that paul has done as well, that oral argument can have an effect on the legal outcome of the case, not necessarily justice the vote that is produced by the justices. >> let me just add, another point here. about the value of oral argument. in the present operation of the supreme court, 7 of the 9 justices use a pool of clerks. each case the court is considering, whether it will hear is examined by one clerk, for 7 chambers. so, what that means, is that the group -- group of 7, that is in that, is going to see they clerk's memo, that recommends hearing the case, or not hearing the case. and what that does, is it removes the justices even further from an intimacy with the case. and so, that enhances the important -- importance of this first exchange they'll have on the bench. because, they've already delegated the selection process, in the substantial degree, so, they don't talk about it that much. until they get on the bench the day of oral argument, so, i think that contributes to the sense that, hey, this is an interesting case, and we're encountering for this first time when we walk into the bench. >> i would throw in the notion a good quarrel may be what the justices are from time-to-time looking for. and they certainly choose this cases based on the best facts. and i get the sense, at least they are more engaged in many instances, when they know who is arguing the case. certainly what struck me about bush versus gore is that the -- the dialogue. this was an engaged conversation. there was no one with the exception of justice thomas sort 0 loaning back and not participating in this. even in my own case as a reporter, covering it, there might be a case i wasn't particularly interested in, that had an interesting and effective attorney arguing it and i would have gone to court just to listen to john roberts argue a case. >> and i think it also may be worth adding different justices use oral argument in different ways. and that we're talking as though all nine justices use it to the same ends and going back to charles' discussion of bush versus gore, there are argument, where you see who made up that are mind, two second, walking in, i don't know that justice roberts changes his mind a whole lot based on oral argument, i think he uses it for different ends. i think as charles said, you often get into a situation where, advocates are let really ignoring questions from justices, to take justice kennedy's questions or in some of these chapter justice o'connor's questions because there is a feeling these are justices who use oral argument to actually tease out something they are working on and so i think different justices really do go into oral argument with a different agree of open mindedness and one of this reasons, i think, clarence thomas says he doesn't speak at oral argument is he says, there is no point in them at all. >> thanks. i'm afraid we are going to need to wrap it up here, i think we could have a conversation that lasts another hour on the tommic of oral arguments, but we have been talking about the new book, edited by tim johnson and jerry goldman, "a good quarrel" put out by the university of michigan press and i wanted to thank our panelists for coming and making the time to talk with us about oral arguments, it has been a fun exchange and gladly, there were no good quarrels on this bench today, want to that, georgetown university law center for hosting our discussion, and i wanted to thank you for coming and watching today. thank you. 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