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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Friday, November 28, 2008

May It Please The Court

And Also: Four Christmases has received a mix reception, but I enjoyed it overall. It has some laugh out loud moments, plus some characters you might be surprised to care as much about as you do. A great supporting cast, even in bits like Peter Billingsley (also executive producer). Almost becomes a bit too serious, but catches itself just a bit, and even Bad Santa was a bit touching (in a fashion) in its own fashion.

In short, the Supreme Court tapes are a wonderful idea that disappoints in the execution. For this, the court itself deserves some blame. In 1974, the distinguished constitutional lawyer Jack Greenberg (recently dean of Columbia University) asked the court’s cooperation in publishing a “balanced” and “accurate” series of edited oral arguments. The justices, quite brusquely, turned him down, thus leaving the endeavor to someone (like Irons) who would act without their permission. The listening public now suffers for the court’s shortsighted choice.

-- Edward Lazarus

Peter Irons is a good liberal, down to re-opening the Japanese Internment cases in the 1980s via a special legal proceeding. His ideological leanings are suggested by his conviction for draft evasion in 1963, one eventually overturned for prosecutorial misconduct. He also fought the good fight of judicial openness by making public audio files of Supreme Court orals, long before a select few were available on C-SPAN or transcripts were readily available online, pissing off a few justices in the process. They were open for educational purposes, but this was seen as limited to researchers, not the general public. CJ Rehnquist actually was thinking of taking "legal remedies" against Irons, before thinking better of it. Would this have led to a companion book to Irons' Brennan v. Rehnquist, Irons v. Rehnquist?

Iron's "May the Please the Court" series that provided audio excerpts (ala the process for casebooks, that tend to only include small segments of long opinions) of twenty-three orals ... along with introduction audio that involved two of the lawyers involved in Roe v. Wade and the "Poor Joshua!" DeShaney case ... along with a transcript and excerpts of the opinions was "a wonderful idea." I purchased the first collection some time ago, following up with the less nicely packaged [the first set came in a neat plastic case] sets concerning the First Amendment and arguments involving abortion. I liked them. Likewise, as noted, only providing excerpts is fine as is his decision to provide audio commentary (intro, bridges, conclusion).

[You can find unedited audio elsewhere, but as with all sorts of unedited firsthand materials, there is a certain thickness to it, including a lot of tedious material hard going for the average person. I myself find this hard going, even in fields of interest, though admittedly, one step removed leads you to lose something.]

I was not alone -- along with his various books (an ongoing theme was providing background to the people involved in the cases, his latest on religious battles doing a good job providing a personal flavor of both sides) -- you can find various top names (not only liberals) writing nice things about his efforts. All the same, even an amateur at this sort of thing like me found various slip-ups, putting aside his (to be honest) rather knee-jerk slant is clear even without noting the misleading edits discussed in Lazarus' reviews. A few were blatant, including labeling a justice saying such and such when said justice wasn't on the Court at the time; or, in one case, a personal comment on how to edit a segment being left on the tape! Forgivable, but it is an example of some of the sloppiness found here.

And, commentary such as "only the courts have the ultimate power of enforcement" really is troubling, especially for not only a political science professor, but a lawyer to boot. You might be able to work around a logical understanding of the phrase, one that seems to be counter to Hamilton's lesson about the Court lacking "force or will." Maybe, he meant judicial rulings are required to truly "enforce" the meaning of the Constitution, a sentiment Madison and Jefferson would agree with in various respects. But, it really does have a flavor of the courts having some sort of enforcement wing, which seems to be the assumption of some critics that fail to understand that its rulings are carried forth (imperfectly, for good or ill) by the elective branches, or administrative wings thereof (more or less). See also, the Lazarus articles.

Thus, as David Garrow (Liberty and Sexuality) warned (citing the articles) as to Roe v. Wade and such, Irons' work here should be taken with a grain of salt. This is unfortunate, since a slightly better job could easily have answered some of EL's concerns without altering the nature of the project much at all. The ideological slant of the author would also have to be a bit of a concern, surely if school children would primarily get a flavor of the orals from his tapes. These days, the audio of most important rulings can be downloaded from online via Oyez.com (though, I still don't know why Doe v. Bolton isn't included). And, said slant -- found in many forms elsewhere -- can be overstated. OTOH, EL has a point, and it's unfortunate.

I still would give a mixed recommendation to the series or to anyone else who would like to provide a comparable one, done a bit more carefully.