>> in that stipulation, i got a problem. i don't understand what some of you are specifying in your questions. you gave me every opportunity to show me. and the stipulation that was entered into is the usda relies on exhibitors -- >> well, 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 then he kept going. went 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 was a real embarrassment and we can 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 been about green plums because they have a bad reputation. people think green plums are unripe and will have bad affects on people. so you can play that. >> and give them to your wife and you're thinking to yourself right now you don't want to give your wife diarrhea. >> i don't want to give my wife green plums. >> i've never seen a green plum. >> and he was directing to justice scalia i shouldn't buy green plums for my wife? i've never seen a green plum. and that's -- you know, he

wasn't trying humor but it came across as just terrible humor and it just completely fell flat. in the end, maybe that's the bell for me to stop. but in the end, he lost the case 5-4 and a lot of people think that if true first amendment lawyer had argument the case it might have been 5-4 the other way. one quick postscript. the faction of fruit growers who objected to thomas campaign arguing the case were so upset that 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 really symbolized the supreme court speciality bar had

arrived. it was deemed so objectively better than the run-of-the-mill lawyer that it even became the basis of a malpractice suit. the suit didn't succeed. there was a settlement. but it seemed to symbolize that sometimes it does really matter to have a good supreme court advocate on your side. >> thank you, tony. well, at this point i'll ask questions of our esteemed panelists and we'll talk a little bit more about oral arguments. so i'll start with a question for dahlia. you concluded your chapter with the comment that an outsider could prevail over a polished insider because of his passion to win. so, for instance, some of the examples you gave he violated the command not to use sound effects and so he said bam at one point or cause the courtroom to erupt into laughter and

applause which he did. so to what extent -- what is the interplay between sort of the presentation of ideas and being colorful and to present one's ideas well as opposed to present ideas themselves. when you think about what's going to lead to your succeeds as an advocate before the court, what -- how did you make a tradeoff between those two different objectives? >> well, i think for every -- for every story that i tell there's ten that tony can tell. that is to say, that anyone going into the supreme court for the first time would be ill-advised to do any of the things that michael did and one of the things that was so interesting to me really we were all dying watching this performance and yet it became clear that he was doing something slightly magical there. i'm thinking of an article -- of an oral argument this year where carter philips was talking about

fleeting expletives and changing policy if one were paris hilton going to swear briefly whether you could be fined for that and it was very interesting because carter phillips who really is one of the harlem globe trotters. he's astonishing but doesn't do a lot of flash. he's meticulously good on the argument piece and not one to draw your attention to himself or anything else, everybody was whispering going into this argument that he was going to actually say one of these fleeting expletives because heed done it in the court of appeals where it was a sailors bar where he was swearing and the judges were swearing it was one of the most fun oral arguments you can listen to. so going into oral argument there was this scuttlebutt he was going to go in there and cuss like a sailor at the

supreme court and at the very last minute he didn't and i think it was an interesting choice to essentially say we're not going to be transgressive here. i think they would have thought it massively deattracted 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 work at the court of appeals and so i think for me really the object lesson it really was an outlier. it was 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. he pulled it off because of some perfect storm of what he was and what the case was in that moment but i really do think the lesson that i took from carter philips in the fleeting expletive case,

don't be too smart. go in and be safe and argue the case the way you'd 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 arguments, it sounded like she was really confrontational. she was combative and this is the argument i want to make and despite all your efforts to get me to deviate from these arguments i'm going to 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're going to follow them in that direction so 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 that she is stubborn. and she was and she remains very committed to her cause. so if you keep in mind that this was as much a political adventure as it was a jurisprudence enterprise and katherine knew what was on the line. it was a high risk. 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 played for our audience, it's clear that 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 and a death penalty case is too. most of the time when you go into an oral argument, the issue is not quite as close as it was in this case. most of the cases are not bound to be 5-4. it's still an exception. a court decides cases 7-2, 6-3 so when you know going into a that it's likely to be 5-4, the risks just rise hugely. and katherine understood as a political activity she couldn't do anything else. and, in fact, she was lucky in this sense. no matter which way the argument went or 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 there were two goals being pursued by the attorney. are there other instances where the lawyers who are arguing a case have a goal beyond the litigation that is being deliberated? >> well, most of the time when the case gets in the supreme court, you know, it's rare because the court gets something like 8,000 petitions a year and they decide 75. 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 that occurs to me, you know, was the 2005 decision

in which the court validated taking away a woman's home in new london, connecticut, so that they could build a big new economic development that was going to support the pfizer pharmaceutical giant. in that case it was very clear that both sides went into that 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 supreme court arguments given how few there are anymore, given the limited scope of what the courts are willing to hear almost every case has a secondary impulse that the lawyers are going to pursue. it isn't often quite as blatant 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 that as soon as the case was over, you

had the audio recordings being made available to the public. there is a great deal of public interest in that case. so what -- what would you say then about why are the justices reluctant to have their proceedings televised and along those lines, what kind of impact would have it on the justices in oral arguments and the attorneys who are presenting their advocacy? >> well, this is a case i've argued before the supreme court one by one justice by justice trying to -- trying to get their perspective on those who would talk about it in any 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 souter famously has said over my dead body. that will not be an issue any

longer. not that he's in poor death and no more souter, no more 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. that he might not have been perhaps as confrontational or hesitant in some dimension in formulating his 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 won't be any cameras. chief justice roberts is not that absolute about it. but he's not in particular in favor of it. and then you have others who say, you can anticipate who they

are, you'll cut me up into 6 second sound bites and lose all 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 had the completeness of it, perhaps that particular justice might not grumble as much and i personally think c-span would be an ideal place. the 60 minutes fits kind of nicely. at least that's my argument. why not? doesn't the american public deserve to see this. >> there's another argument, though, paul, and souter makes this argument as well it's a matter of security. 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 the fellow who's on the supreme court and he says a lot of people have told me that or

something like that. but he genuinely believes that if they become public personalities and he is sure that would be a product of putting their faces regularly on television, then they would be confronted with a personal security system. >> that's a false argument if you working in columbia putting drug dealers behind bars but perhaps from charles' perspective has been persuasive with his colleagues and so i'm not sure that i'm persuaded myself by the argument and as a matter of fact, myao own sense d 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 the information that you gather. and so my sense is that there should be, as you 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 then to reproduce the argument elsewhere but i don't get a vote on that. >> just to add one more thing. i think charles is right that the justices, you know, they still like to be able -- they don't want cameras in part 'cause they can still say no. there aren't that many institutions that have that choice anymore. but i think the momentum of the internet, congress is getting impatient and eventually they're going to have to say yes. justice souter unwittingly gave support to this momentum by his valedictory speech that he gave

not very far from here where he said the state of public knowledge about the structure of government is abysmal and we have to improve civic education for this new generation. and, you know, what better way to teach about the supreme court than to allow cameras to cover their proceedings. >> i mean, if you get a case that involves the question of when can a planned administrator for erisa benefits sue and under what conditions can that administrator be sued, i'm not sure if anybody is going to stay up late and turn off rachel maddo and watch this instead. >> and i would just add to complete the circle since we're talking about audio, even more bizarre than the courts power to say no over all video is the court's completely policy on when they allow audio.

and one of the things that's been driving me insane is that, you know, one of the -- the only times that the public gets access to audio are in the opposite of lyle's erisa case. the court by some metric known to human kind decides which oral arguments are going to get this instant audio treatment and there's usually two or three since bush v. gore but i think it's a co-lasal mistake let's do the audio for the abortion cases and the cases that make people insane and make the justices, i think, act out and if you're going to allow only selective audio, my god, allow audio that's representative of what 90% of the court's docket is which is not all that sensational. but i think this current 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 souter is guaranteed to say something that makes people think the court is a completely ideological body this policy is absolutely the opposite for what's good for the court. >> thanks. can i ask you a question about your case? justice scalia once remarked that not infrequently a lawyer who's done a terrible job both in brief and in oral argument wins the case and you know he's going back to his client and say, well, we did it for you again. scalia continues to quote saying there's no mark for quality of argument or oral presentation. it's who has the better case. so given the flawed arguments by campaign, couldn't the justices just sweep by his faulty arguments which is sort of leads to the broader question so what role do oral arguments have or play in supreme court decision-making. >> well, that's a never ending

debate. and, you know, i think the general means you can lose a case at oral argument you don't win it. and i think this might try to stir reports on a case where the article argument might have lost. i think somebody with a more persuasive oral argument might swell have flipped one vote and that's all he would have needed but overall i think the point is clear. there have been many, many cases when we can count hundreds probably where a poor oral argument, somebody who makes a poor oral argument still wins because the case -- the facts are -- or 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 matter. >> justice powell, lewis powell, once told me 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 about half of 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 in that i said this in, of course, discussing my own chapter. the purpose of oral argument is really to shape the conversation that the justices are going to have because i don't know that the public knows this entirely but they cast their vote very quickly afterwards. the case on mundy they cast their vote on wednesday afternoon and the cases are heard tuesday and wednesday they cast their vote on friday on the private conference. so the court is going to put on

record for itself an initial impression of where we're 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 get assigned the task of writing the majority and if there are dissents, the dissenting opinions. in that sense 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's my -- i think that's why the court won't have dispense with it. there used to be a time when i was younger, which could well have been many years ago, when the court disposed of some cases on the merits summarily without an oral argument. they just decided them on the basis of the briefs but that was back in the time when they had 125, 150 case a term that they were deciding with oral argument.

so the court is capable of doing away with oral argument if it wants to but i think enough of the justices think it's valuable that it's an institution they would like to retain. >> i would add to that, a number of justices have talked about this and i forget who made this 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 -- my view of a case shapes up after oral argument is different from the way i thought it would shape up prior to oral argument and what we often see on the news, in newspapers, online not from these reporters but from others is the court affirmed a lower court decision 7-2. and the readers -- and i've been guilty of this in the past as well just says okay the lawyer court has been affirmed or the lower court has been reversed. the case is not about 7-2 or 5-4 or 9-0. it's about the substantive law that is created in that case. now this justice and others who

have talked about how oral argument can affect their decisions, it's 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 she's been persuaded that it would go as far as it would or maybe it goes further than that. so the point is, and from my own research and i know some research that paul has done as well, that oral argument can have an affect on the legal outcome of the case not necessarily just the vote that is produced by the justices. [inaudible] >> about the value of oral argument. in the present operation of the supreme court, 7 of the 9 justices used a pool of clerks. each case that the court is considering what it's going to hear is examined by one clerk

for seven chambers. so what that means is that the group of 7 that's in that is going to see a clerk's memo that recommends hearing the case or not hearing the case. and what that does it removes the justices even further from an intimacy with the case and so that enhances the importance of this first exchange that they're going to have on the bench because they've already delegated the selection process in a substantial degree so they don't talk about it that bench until they get on the bench for oral argument so i think that contributes to the sense that, hey, this is an interesting case we're encountering for the first time when we walk into the bench. >> i would throw in the notion that a good quarrel may be what the justices are from time to time looking for. and they certainly choose the cases on the best facts and i get the sense that they are more

engaged in many instances when they know who is arguing the case. certainly, what struck me about bush versus gore is the dialog. this was an engaged conversation. there was no one with the exception of justice thomas of leaning 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 arguing a case. [inaudible] >> and it would be worth adding different justices use oral argument in different ways and that, you know, we're talking as though all 9 justices use it to the same ends and i think, you know, going back to charles' discussion of bush v. gore, there are arguments where you see who's made up their mind 2 seconds walking in. i don't know that justice

roberts changes his mind a whole lot based on oral argument. i mean, i think he uses it for different ends. i think as charles said you often get in a situation where advocates are literally ignoring questions from justices to take justice kennedy questions or as some of these chapters, justice o'connor's questions"áz because they use oral argument to actually tease out something they're working on. and so i think different justices really do go into oral argument with a different degree of open-mindedness. i think one of the reasons clarence thomas says he doesn't speak at oral argument is he says there's no point in them at all. >> well, thanks i'm afraid we're going to need to wrap it up here. i think we could have a conversation that lasts another hour on the topic of oral arguments. but we'd been talking about the new book edited by tim johnson and jerry goldman, "a good quarrel," put out by the university of michigan press. i want to thank our panelists for coming and making the time

to talk to us about oral arguments. it's been a fun exchange and gladly there are no good quarrels on the bench. i said to thank georgetown university law center for hosting our discussion and i want to thank you for coming and watching today. thank you. [applause] >> jerry goldman is a northwestern university professor of law and directs the oyez project a multimedia supreme court archive. timothy johnson is a university of minnesota professor of law and political science. for more information on timothy johnson, visit law.umn.edu for jerry goldman, oyez.org. >> here's a look at some upcoming book fairs and festivals over the next few

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