Mar
28
by Marsha Hunter
The battle of the titans is on at the Supreme Court this week. Star advocates and celebrity justices argue behind closed doors, viewed by a lucky few in person. The politics of the health care hearings is hard to avoid, whether you turn on a TV, a radio, click into a news source, or find a newspaper at your hotel room door. Without video to show us what is happening (and video is long overdue at the Court), we rely on journalists and bloggers, or audio and transcripts. Audio from the courtroom allows us to hear through the politics and think about how the arguments unfold. What can we hear?
On Monday, we heard three advocates, Robert A. Long, Solicitor General Donald B. Verrilli, Jr., and Gregory G. Katsas, debate the relevance of the Anti-Injunction Act. The first to speak, Mr. Long, was interrupted in the third paragraph of his initial statement after 90 seconds. That means he had a minute and a half to get his heart rate down and manage his adrenaline flow before Justice Scalia said, “Well, that depends…..”
Last week’s news reported on the amount of preparation going on in Washington for these arguments. One implied that we were running out of lawyers willing to impersonate Supreme Court justices because so many moots were scheduled. Here are some of Monday’s real questions that those simulations were preparing for. They were just the type of inquiry to keep an advocate’s heart racing:
- What kinds of cases do you imagine that courts will hear, on what grounds?
- Are you asking us to overrule the Davis case?
- Now, doesn’t that sound like an equitable exception to the Anti-Injunction Act?
- I’m trying to get you to focus on that kind of argument.
- Are you following me?
- Isn’t the fairer statement…..
- Doesn’t that just prove that…..
All three advocates stood their ground, answered succinctly or in detail when appropriate, and kept multiple questions in mind as they answered. They looped back to their own themes, occasionally with a polite apology about repeating themselves. It proved a decent warm-up for General Verrilli, who had two more grueling days ahead of him. Just listening to voices, his was the clearest, with the most air under the sound. His voice is a resonant baritone, with a pleasing quality.
When listening to arguments, pay special attention to the rate of speech of both advocates and justices. The ability to speak in deliberate phrases, without rushing, is the key to thinking and speaking in the moment.
For Monday’s audio, go to:
http://www.supremecourt.gov/oral_arguments/argument_audio_detail.aspx?argument=11-398-Monday
News reports after Tuesday’s arguments stated that General Verilli had sounded nervous. I was surprised, as he seemed confident on Monday. But sure enough, his first statement betrays a problem when listening to the audio that is not apparent in the transcript. Here is the transcript, with my observations inserted:
GENERAL VERRILLI: Mr. Chief Justice, and may it please the Court:
The Affordable Care Act addresses a fundamental and enduring problem in our health care system and our economy. Insurance has become the predominant means of paying for health care in this country. COUGHS TWICE, THEN REPEATS THE LAST SENTENCE, SO HE MUST BE READING. Insurance has become the predominant means of paying for health care in this country. For most Americans, for more than 80 percent of Americans, the UH insurance system does provide effective UH access. DRINKS WATER, AND WE CAN HEAR THE ICE CUBES TINKLE IN THE GLASS Excuse me. AS A LISTENER, I AM NOW BECOMING UNCOMFORTABLE, WONDERING WHAT IS WRONG.
But for more than 40 million Americans who do not have access to health insurance either through their employer or through government programs such as Medicare or Medicaid, BIG, AUDIBLE BREATH, the system does not work. Those individuals must resort to the individual market, and that market does not provide affordable health insurance. It does not do so because COUGHS SMALL STUTTER it — because the UH multibillion dollar subsidies that are available for the -UH the UH SOMETHING IN HIS TONE OF VOICE SIGNALS HE IS STRUGGLING, THAT HE IS STILL NOT OK employer market are not available in the individual market. It does not do so because ERISA and HIPAA regulations that preclude — UH that preclude UH discrimination against people based on their medical history do not apply in the individual market. That is an economic problem. And it begets another economic problem.
Here, at 1:44, Scalia asks the first question, in a quiet voice.
What happened to General Verrilli during that first minute and forty-five seconds? I’m guessing that he had “cotton mouth,” that odious condition resulting from adrenaline’s shutting down of the digestive system and robbing the speaker of saliva. It makes people clear their throats, need a drink of water, cough—all at the most important moment, the first-impression beginnings. In most public speaking situations, you can recover, but at the Supreme Court, your questioners may smell blood in the water. They will probably attack before you completely recover.
What do you think? Did General Verrilli recover sufficiently to argue effectively? How would you guard against this hazard?
For Tuesdays’ arguments:
http://www.supremecourt.gov/oral_arguments/argument_audio_detail.aspx?argument=11-398-Tuesday
