Thurgood Marshall was not known for jousting with counsel who appeared before the U.S. Supreme Court. But listen to him arguing before the court as a lawyer in Cooper vs. Aaron, the 1958 Arkansas school segregation case that attempted to make Brown vs. Board of Education, the court’s landmark 1954 decision, stick. “I am not worried about the Negro children at this stage,” he told the court. “I worry about the white children in Little Rock who are told, as young people, that the way to get your rights is to violate the law. . . . I don’t worry about those Negro kids’ future. They’ve been struggling with democracy long enough.”
It’s a truism of law that you can hurt your case at oral argument but never strengthen it, so Marshall’s eloquent argument must be the exception that proves the rule. And thanks to Peter Irons and Stephanie Guitton’s book-and-tape package “May It Please the Court” (The New Press: $75, book plus six cassettes), you can hear Marshall make it: although every argument before the Supreme Court has been recorded since 1955, until now they have not been available to the general public. Irons, a civil liberties lawyer and director of the Earl Warren Bill of Rights Project at UC San Diego, and Guitton, a UC Berkeley graduate student, have selected 23 of the most important cases argued before the court since 1955; they include such familiar names as U.S. vs. Nixon (Watergate tapes), Gideon vs. Wainwright (right to counsel), Regents vs. Bakke (reverse discrimination), Roe vs. Wade (abortion), and Texas vs. Johnson (flag-burning). The transcripts are edited and annotated for accessibility, and listeners can follow along in the accompanying text.
On listening to the tapes it can be hard to determine which justice is speaking, and the give-and-take between the justices and the lawyers often involves arcane, technical aspects of the law. That’s the down side of “May It Please the Court”; the up side is that they provide a good sense of the justices, and especially the attorneys, who frame the law in this country. Antonin Scalia, pressing the state’s lawyer in Texas vs. Johnson, is full of energy and challenge, making his disbelief obvious yet friendly nonetheless; former Justice Lewis Powell, by referring to the homicide rate in the U.S. as virtual “slaughter,” gives solicitor general Robert Bork carte blanche in Gregg vs. Georgia to talk about the deterrent effect of the death penalty. Anthony Amsterdam, arguing against Bork in Gregg, seems angry, almost arrogant, and one can’t help but wonder whether his supremely confident presentation turned a vote or two against him.
The obvious audience for the “May It Please the Court” package (which can be bought separately, the tapes for $45 and the book for $30) is students and lawyers. Here’s hoping, though, that the project reaches many more people, for it provides insight into the Supreme Court and the judicial process that is otherwise available only to those who find themselves in Washington, D.C., at just the right time. It’s a pity this treasure trove of recordings has been buried so long, and one can only join Sarah Weddington--attorney for “Jane Roe” before the court--in saying “thank you, thank you” to Irons and the New Press for making it readily available.