tv [untitled] CSPAN June 22, 2009 7:00am-7:30am EDT
>> i chose the casey decision that was decided in 1992 and i did so for what is for me at least a very obvious reason. beginning with justice o'connor's ascension to the bench in 1981, it was very clear that 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 it was less sustaining to determine a right to a abortion and it finally got to the point where the majority was down to 5, 5-4. and there had been indications particularly in 1989, o'connor might provide a vote to overturn
roe vs. wade and indeed the ragan administration had tried several times to persuade the court directly to overrule it. i chose this particular case for oral argument because of the audacity of 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 talk about test cases as if everyone was a test of some new jurisprudencetial. it was put together by the women's right movement as a test that roe was a viable precedent. when katherine colbert put together the brief with her colleagues, they asked one 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? i mean, if you put that as a factual statement, the answer clearly was, no, it has not overruled roe vs. wade. it was clear that the women's rights movement it was a risk the court would overturn roe vs. wade. but they also had very much in mind the fact that in 1992 was a presidential election year and they were determined to turn this lawsuit and this supreme court case into a political campaign issue to try primarily to help bill clinton win the white house. in fact, there is some evidence from the political world that this case and the outcome of this case did help. but there's another aspect of katherine colbert's arguments
which i think really enticed me to write about it. the hardest thing that a lawyer appearing before the supreme court has to do is to keep control of the argument that they want to make because there are 9 justices, 8 because justice thomas doesn't participate in oral argument but there are at least 9 very smart people who have already done some thinking about the 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's important to remember the supreme court justices do not talk much about a case before they go into oral argument. so oral argument is really an agenda-setting moment. it 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 this case. so a lawyer who really wants to shape that argument, who wants to put some -- some control on the first argument that the justices are going to have among themselves must keep control of their argument. it was very apparent from the early part 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's under review here. >> i'll interrupt you there for a second because they're going to make sure the audio is turned on and i'll play that quick then.
>> i think it's that computer down there. >> try it now. >> you're arguing the case and all we have before us is whether to apply stare decisis. we branded certiorari and we planned to address the arguments. however, the central question in the case is what is the standard that this court needed to evaluate the restrictions that are at issue? and, therefore, the squared may affect the outcome but at the bottom we have the specific issues and i wondered if you're going to address -- >> yes, i am i would like to but the standard that this court
applies will affect the outcome of the case. >> you can see or hear in that exchange the tension that was evident in the courtroom on that day because o'connor 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 that justice kennedy also was pushing but as you could hear, in a rather deft way, katherine colbert said, well, i will get to your point. i will argue the pennsylvania statute but i want to get back to the standard, by which she meant 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 colbert back onto the specifics. >> i don't question the importance of you arguing there's a fundamental right as you've done. however, there's a fundamental right and with any other number of arguments in this case, i don't think our decision in that case is necessarily inconsistent with a fundamental right but one way of understanding this fundamental right is to decide the case on a case-by-case basis and i think there are some things that i think you should address. >> the critical statute is
whether as a result of the fundamental court will accord the standard of roe because under that standard, there's no dispute among the parties. under that status the provisions the 24 hours mandatory delay has been found unconstitutional will and this court has gone to far the husband should have so i guess issues in this case has been found unconstitutional. >> they are statutorily position and not necessarily undercut the holding of roe vs. wade. >> it is our position, your honor, that if this court were to change the standard which has been the central core, that will undercut the whole of this court and overrule roe vs. wade.
so abandon it for a less protective standard there is a rational relationship that has been discussed by this court. it will be the same. the beauty of roe, the protections of roe flow from the fact that this court gives that particular state regulations well establishes and creates a burden on government to come forward with a compelling way. >> you're say rogue allows to you make that record that's not the only logical possibility in that case. >> as 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 katherine colbert, i think, really ultimately proved the worth of her choice because she did shape the conversation that occurred with the justices. finally in the end justices, kennedy, 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 only that one part, the requirement that a woman contemplating abortion notify her husband that she was doing so. to my mind, it is a classic demonstration of deciding what you want to argue, going in to make that 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 the bitter end and then hoping for
the best. and it was a 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 that it emerged as a consequence, a direct consequence, i would suggest of katherine colbert's argument. thanks, paul. >> charles. >> thank you for asking me for this pardon. 2002 was a presidential election year and it wasn't tough bush versus gore 2000 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 importance.
one might even suggest as a political reporter which was part of my responsibilities 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 all -- pretty much laid out in front of us and without the bamboozlement of a 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 if not literally between the courts in tallahassee and other places in florida and the supreme court. in the span of 10 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 has been ripening for 10 or fifteen years in lower
courts but was festering in the political scene for days during the election so that not only voters, the public, the world at large but the lawyers who had to deal with it and the justices who had to decide on it all dealing in a very contemporary setting of uncertainty. what actually happened. what did those ballots that we saw people looking through or trying to look through represent? and what were the kinds of things that had to be judged here in the u.s. supreme court itself. added to that from a broadcasters perspective, i was the cnn correspondent, was the opportunity to not just sit in a court but then to 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 had
concluded. no sooner had justice rehnquist said the cases were submitted we turned 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. what they heard from my judgment was two extremely competent attorneys arguing. ted olson on behalf of the bush campaign and david boyce on the gore campaign. somewhat to your attorney, dahlia, these are extremely, accomplished familiar faces although david boyce had argued once previously at the u.s. supreme court. he had been handling the arguments in the florida courts and was probably as familiar with anyone with florida law as it unfolded. now, what he encountered, boyce 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 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 on the vote for 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 four of the counties was being judged, whether each ballot was being given that same scrutiny, that
same quality 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 ballots that weren't completely voted we were dealing with overvotes and undervotes. 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. the most notorious of which was known as a butterfly ballot. we won't go into the it they had wings and didn't completely line up. which was was the court going to go? one of the clips i'd like to play is david boyce 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 with article 2, i'm not so sure. i mean, i would have thought that was the standard when it contemplates it is plenary power in the legislature, does that not mean that the court has to in interpreting a legislative act give special deference to the legislature's choices insofar as a presidential election is concerned? i would think that is a tenable view anyway. and speebl -- especially with
concerns in line with section 5. >> in interpreting the florida law, i think the court needs to take into account the fact that the legislature does have this plenary 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 were no special burden to show some deference to legislative choices and this one context, 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? >> i think there is a sense, your honor, and i think the
florida supreme court was grappling with that. i think it did -- >> that's obviously justice o'connor joining the conversation shortly after justice kennedy where mr. boyce started and he barely uttered the words thank you, mr. chief justice. >> he had two real targets sitting on the bench in front of him, kennedy and o'connor he knew going in and this was pretty much a 5-4 court because the court had also taken the unusual step of issuing a stay on the counting procedures in florida. that was done on saturday. arguments were on monday. the issuance of the stay suggested that there were already five votes stacked against mr. boyce and vice president gore and if he was going to anyone he had to focus his attention on kennedy and
o'connor and if justice kennedy said could we start here there is only one response, yes, justice kennedy, let's start there and discuss that. in effect, 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 carry-over from what the florida numbers resulted in, although some people think the election was only decided by 9 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, it was an unsigned opinion for the court. the authorship later became evident, was kennedy's and it was only because kennedy and o'connor were comfortable with
the equal protection aspect. that is is every vote being counted like every other vote, which clearly was not the case. that they were able to muster the five votes even though there's one place in the opinion that says seven of us agree and those of us who scrambled out for court afterwards found that one and said perhaps momentarily, a-ha it's a 7-2 vote. let me look, no there are 1, 2, 3, 4 dissents to parse out what was going on. it came down eventually how the ballots were being counted. >> can we submit that we incorrectly interpreted the line in doing that because what they have done is provided a process whereby it is virtually impossible and not completely
possible to have these issues resolved and the constitution constantly controversy resolved in time for that federal statutory deadline. furthermore, it is quite clear that we submit the process has changed. >> well, if you're concerned with impossibility, why didn't you let the process run instead of asking -- >> well, because we said we'd find -- >> well, justice souter said if you'd let it go we might have found exactly how this balance had come out but that was not the intent of mr. olson and governor bush at that particular time. many justices will say that oral arguments don't change their opinions but that they help them close the gaps and narrow some of the inconsistencies. i'm not sure but in hindsight looking at this and listening to the arguments 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 approach but if there was a way he could find the result that said equal protection was not being afforded every voter here, that was a comfort zone for him. >> 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's an intense and fascinating process and i'm struck how intense it is by the fact where we are right now. we're sitting at a replica of the supreme court at the georgetown university law center where the dimensions are exactly as they are in the court with the lectern, the same distance from the justices in real life and it's incredibly close and i can imagine it's just a really
nerve-wracking 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 i picked to write about in a way is a lot less known than the others you just heard about but it is in a way the exact opposite, flip side of the coin from dahlia's case 'cause in this case, there is a rookie lawyer, a lawyer who had never argued before the supreme court before, but he ended up making a spectacularly unsuccessful argument. he like michael was totally passionate about the facts and the background of the case but it just fell flat and it was too passionate and it makes another point about the supreme court. many cases, when they get to the supreme court, are much more abstract level than the trial
court and the lawyer court levels. in the trial court the issue is the facts, you know, did the police officer do this or not. but when you get to the supreme court the facts seem often to fade in the background and the court is really concerned about a legal issue, a constitutional issue. and that's what this lawyer forgot. the case just briefly to summarize is called glinton versus wildman brothers and it's a first amendment case. of course, the first amendment protects the freedom of the speech but it also has been found to protect in some instances the right not to speak or the right not to have the government force you to say something you don't agree with. and in this case, it was a group of california fruit farmers, producers of vegetables and
fruit in california every time they sell a bushel of corn they have to pay a dollar into a federally backed marketing program and that marketing program then pays for ads and commercials on television to advertise the fruit in a generic way much like the milk commercial, beef, it's what's for dinner. this group of fruit farmers did not like the ads that were being produced on their behalf through this marketing program. the ads were featuring varieties of fruit they don't grow and they didn't like some of the subliminal sexual suggestion on the ads about the lusciousness of the fruit and they decided to make a first amendment challenge to this marketing program. thomas campaign, a lawyer in fresno had been their lawyer for
years and was challenging this, quote, program every step of the way. he knew everything there was to know about this marketing 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 -- this is now gotten into the -- we're getting away from the facts. we need a really good first amendment lawyer and they hired michael mcconnell who was now -- who then went on to become a distinguished federal judge. he's a tremendous first amendment expert so we had two groups of farmers one sticking with thomas campaign, the other sticking with -- or 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 and only a half hour for them to argue to the clerk of the court actually flipped a coin to resolve this
unresolvable fight between these two lawyers and thomas campaign won. so he argued the case and almost from the outset you could see that he -- the first amendment issue of the forced speech was of no interest to him. he wanted to relitigate this program about fruit. and he started to argue about stipulation 43 and exhibit 297 as if he was back in the trial court. and there's one clip we have of how unsuccessful that gambit was. the first -- the first clip. >> what is the problem with peaches and plums and neck marines in california that's any different than the other 32 states. well, justice scalia, the solicitor in answering your
question in that regard i believe we spoke. he indicated there was a finding that there was disorder markets and the act that doesn't deal with that anyway. the promulgation records here we have an unusual situation that justice o'connor spoke about in the community nutrition case. we filed a petition. we sued the secretary of agriculture. she gave the government every opportunity possible. as a matter of fact, we stipulate that exhibit 297 and i made that stipulation, that stipulation number 57 -- i'm sorry, 59 but that was the exclusive meeting. when the district of columbia relied -- >> just a minute, mr. kennedy. it's not helpful to hold up a brief and say stipulation number 59. we don't -- if you want to make a point, make it so we can all understand it.