Soundscape history and environmental law in the Supreme Court.

• Author: Tomasovic, Brian S.
• Position: I. Introduction into IV. Audience, p. 895-927

1. Introduction II. Oral Advocacy in Environmental Cases A. Historic and Demographic Notes B. Advocacy Lessons and Environmental Lawyering C. Advocacy Greatness III. Voices from the Bench in Environmental Cases A. Personality and Humor of the Justices in Environmental Cases B. Thinking Like Environmental Lawyers? C. The Justices and Environmental History IV. Audience A. The Critical Ear B. The Greatest Oral Arguments in Environmental Law V. Conclusion APPENDIX A. APPENDIX B. I. INTRODUCTION

   "Two Voices are there; one is of the sea, One of the mountains; each a mighty Voice ..."

   --William Wordsworth (1)

   This Article reflects on the history of environmental litigation before the Supreme Court of the United States as preserved in sixty years of audio-recorded proceedings. At the start of the October 1955 term, (2) the Court installed its first sound recording system. (3) Since then, twenty-four Justices have retired their robes, (4) eighteen Solicitors General have hung up their morning coats, (5) and untold numbers have played audience to the Court's agency, or not, in the profound social, legal, and technological changes of past decades. All the while, the Court's audio reels and successor recording devices have, by their accretive workings, deposited a rich archive spanning many thousands of hours. (6)

   Only in the last several years have the Court's sound recordings of oral arguments and opinion announcements become available, accessible, and highly portable for public listening convenience. (7) Thus, their contents and significance as a resource to the legal profession have been little studied. (8) While some commentators have extolled the richness of the Supreme Court audio recordings as unique instructive tools for the study of constitutional decision making, (9) this Article is the first to appraise the archive's value for a specialized practice area: environmental law.

   Approximately five hundred hours of the Court's sound recordings are the heritage of today's environmental lawyer. (10) As the primary data set for this Article, Appendix B compiles the list of available oral argument recordings for more than three hundred Supreme Court cases where environmental protection or natural resource concerns were at stake. (11) Corresponding opinion announcement recordings are additionally available for a great majority of cases since the late 1970s. (12) The definitional scope of this compiled case list borrows from and builds on earlier studies by Professor Richard Lazarus on Supreme Court decisional history in environmental cases; it is, moreover, notably expansive and comprehensive of those cases that "raise legal issues for which the environmental setting would seem wholly incidental to the resolution of the precise legal issue before the Court." (13) Appendix B also labels, using keyword tags, the identity of these settings under the rubric of the environmental burdens, risks, or amenities at issue in each case. (14)

   Of course, the bounds and relief of the Court's environmental docket are not susceptible to perfect mapping. From the sound recordings themselves, newly appointed Justice Scalia once remarked "To-mae-to, tom-mat-to. You call them amenities, I call them environmental impacts.... [T]o try to sever environmental laws from land use laws seems to me very artificial." (15) As Justice Scalia identifies, some niceties of taxonomy impede understanding as much as they illuminate it; (16) the cases are accordingly compiled and classed with a broad lens for the general usefulness of readers and potential listeners, with a necessary dose of editorial judgment. (17)

   While these audio recordings--primary sources that are largely but not entirely coextensive with the Court's vast written decisional history (18)--can collectively lend themselves to observations on the broad history of environmental litigation at the Supreme Court, this tack gives little prospect for a manageable focus of inquiry. Accordingly, this Article aims to examine only those distinctive features of the "soundscape" for what they may uniquely teach to students, scholars, and practitioners of environmental law. Taking these listeners as the audience, how should we appraise the audio recordings? Are they, in the end, something more than a kind of casebook supplement?

   In taking up these questions, one organizing principle for this Article is elemental to the Court's setting while in public session. Consider that oral argument recordings are chiefly the interplay of two sets of voices: those of the Justices and those of the advocates. Yet a third presence is the unvoiced "audience," a grouping that fairly encompasses the parties to the dispute and, more abstractly, past and present day Court followers, including present day audio recording listeners. This Article thus proceeds in three major parts: Part I, the advocates; Part II, the Supreme Court Justices; and Part III, the audience.

   As an accompaniment to each of these parts, this Article takes on several crosscutting themes. Part I engages the concept of "environmental lawyering" alongside its examination of advocates and advocacy through history. Part II studies the Justices as dramatis personae in the Court's environmental docket, but goes further to reflect on how the Court, institutionally and through its work, intersects with "environmental history." Part III draws focus on the audience as prospective listeners. Since that audience would expectedly overlap with the readership of this Article--namely, academics and practitioners in the field--"environmental law" is the crosscutting theme.

   Sound recordings are one avenue among many for practitioners to study major cases, but they also convey sophisticated advocacy lessons that are not as perfectly captured by transcripts. The Supreme Court Historical Society even offers a list of "the most significant oral arguments heard by the Supreme Court from 1955 until 1993." (19) The driving inquiry then is whether scholars and practitioners in the environmental field can specially profit from immersive, selective engagement with the sound recordings of the Court's environmental docket, as may be assumed for certain landmark constitutional cases. (20) Ultimately, the value of the environmental docket recordings is real but the degree of value is necessarily idiosyncratic to any individual listener's investment and foundation for listening. Interested readers may take this Article as a listener's guide for exploratory courses of their own making.

2. ORAL ADVOCACY IN ENVIRONMENTAL CASES

   Center stage at oral arguments is a matter of perspective, but the Court's "familiar curved bench"--introduced by Chief Justice Burger in 197121--suggests the focal point should fall on the advocate's podium, making it an inviting place to begin. This Part reflects on the advocates who have earned the "quill" (22) and argued environmental cases before the highest court in the land.

   As should be expected upon examination of any substantial cross-section of the Court's docket over time, the oral arguments for the Court's numerous environmental cases validate general insights on how oral argument procedures, advocate demographics, and the Court's docket composition have changed through time. Still, there are several historic notes of unique interest and special relevance to environmental practitioners. As might also be expected across hundreds of hours of arguments, soaring advocacy skills along with occasional blunders permeate the soundscape. (23) Environmental lawyers should benefit from listening for those distinctive moments that illustrate the peculiar challenges of environmental lawyering. Notably, oral advocacy effectiveness has long been the hallmark of the advocates of the Office of the Solicitor General, an advantage that draws from that office's service as the Court's "quintessential repeat player." (24) The question of oral advocacy greatness is discussed with special reference to their legacy.

   1. Historic and Demographic Notes

      While certain traditions endure at the Supreme Court, the role of the advocate at oral arguments has changed markedly with time. Before 1970, oral arguments were languid affairs, often lasting three or more hours. (25) Since 1970, the Court has conventionally limited oral arguments to 30 minutes per side. (26) Adding to these time pressures, the intensity of questioning from the bench has increased in recent decades to a point where the concept of a "hot bench" has effectively lost the meaning and application it may have once had. (27) Today's arguments often have maximally active colloquies and even a harried tempo that only heightens the spectacle for Court watchers. (28) These differences would be plain to anyone comparing an oral argument recording from 1975 to an argument forty years forward.

      Shifts in customs and courtesies have been subtler. Arguments prior to the 1980s almost always began with a stock opening phrase: "this case is here on writ of certiorari from [lower court]," (29) but this practice is now long abandoned. (30) As yet another example, in the early decades of recordings, advocates would refer to their opponents as their "friends" on the other side--a custom now undergoing a renaissance in the Roberts Court. (31)

      Whatever the time period, advocates display a common call to present their cases in a dignified fashion. (32) One of the more rewarding, if not ennobling, aspects of listening to oral arguments through time is hearing the great continuity of generations of lawyers seeking to fulfill their duties to the client and the Court. In the oral advocacy context, not all advocates can answer with candor in the most forthright and skillful way, but one perceives they are almost universally pulled by the gravity of this core professional duty.

      Any reflection on advocacy history invites some examination of the demographics of the advocates before the Court. What can be said of the diversity of...