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Saturday, March 31, 2012

What do the ACA arguments say about cameras in SCOTUS?

Everyone was aflutter last week over the three days of arguments on the various issues with ACA, in which the Court modified its usual rules by releasing same-day audio and trnascripts. It created quite a lot of what Andy Koppelman calls "Kremlinology," with everyone trying to read tea leaves based on who asked what questions and how, how many words each justice directed at each side (empirical studies suggest that individual justices ask more questions of the side they ultimately rule against), and what conclusions people reached depending on whether they read the transcript or listened to the argument.

Dahlia Lithwick argues that the anti-camera arguments seem "awfully thin" after this week. The justices arguably spent much of the argument showboating, talking in news-ready snippets and soundbites, rolling out cable news tropes and clever phrases (broccoli, Cornhusker kickback, severabiity review as cruel-and-unusual punishment), and spending little time discussing actual law. In other words, doing all the things they say would come about if cameras were allowed.

Then RNC released an anti-Obama ad in which it used audio of Donald Verelli's argument opening (in which stumbled a bit and paused to take a drink) to show that ACA is invalid because the administration's own advocate had a hard time defending it. It turns out the ad doctored the audio, making his water pause last about 20 seconds. Tom Goldstein and Amy Howe suggest this will set back efforts at getting cameras into the Court, or getting greater Court transparency generally, illustrating the potential for recordings to be distorted and misused, not only as it was by the RNC, but also against the justices themselves.

Goldstein is probably descriptively correct that this may become Exhibit A in the anti-camera arguments going forward. But Lithwick is right that this all makes no sense. As I've argued repeatedly, the very problems the justices want to avoid by excluding cameras come about anyway. And perhaps those problems all were on display this week (still working my way through the transcript). No one has ever come up with an argument for why cameras make the supposed problems worse than audio and transcripts. And it is hard to imagine the RNC ad would be more or less effective (or more or less distorted) if it had video as well as audio to work with.

Posted by Howard Wasserman on March 31, 2012 at 03:33 PM in Howard Wasserman, Law and Politics | Permalink


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After reading the transcripts of the ACA arguments, the chance of letting cameras into the Court is zero. Reading the transcript or listening to the audio is bad enough showing the incredibly low quality of the argument. I haven't had a chance to see what they have done with this but Stewart and Colbert could easily have a field day. Many of the questions were as clueless as the first President Bush not knowing what bar codes are. The advocates were not much better, with Carlin sinking to the level of Scalia and Roberts.

Posted by: Mike Zimmer | Apr 1, 2012 12:55:19 AM

The RNC ad wouldn't be much worse with video, but it wouldn't have nearly as much impact without the audio. You may have inadvertently made an argument in favor of returning to long delays in releasing the audio, so that it's disconnected somewhat from the immediate political wake of the arguments.

Posted by: Pio Szamel | Apr 1, 2012 2:59:53 AM

Howard, as you know, I disagree with you about this. I think permitting cameras will make things much, much worse, and exactly for reasons related to politically controversial cases like this. The showboat component of advocacy will be given primacy, as instead of soundbites of Verrilli fumbling his lines, we'll be shown pictures of him fumbling his glass of water. Emphasis will be placed on the funny looking slurping, or the sarcastic responsive facial expressions, or the way that somebody yawned, or the color tie they had on. The focus will be on how the Justices look, how their lines come off to the crowd, with closeups of guffawing or frowning audience members. All of that will incentivize the giving of one-liners -- as the appearance of the argument will come to matter more than the substance. I think this is a mistake all around.

Your argument may well be -- look, this happens already with the audio, so who cares and what's the difference. I don't think it happens to the extent that it would happen with cameras. But even if the difference would be marginal (as I think it would not be), I cannot see how this is an argument for allowing cameras. It's an argment of the sort -- 'this happens already, and since we can't draw some sort of principled line between different forms of media, let's not do so, even if failing to do so makes things worse.'

But for my part, I am entirely happy to return to the days of pre-audio release, and just read the transcript. And if the Court upholds the mandate, notwithstanding all of the silly scrutiny and hyperventilation that these arguments have received, it will seem all the more reasonable to take the arguments on the paper, just as they have always been taken before we thought change must mean improvement.

Posted by: Marc DeGirolami | Apr 1, 2012 8:22:46 AM

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