Soundscape history and environmental law in the Supreme Court.

Author:Tomasovic, Brian S.
Position:Continuation of IV. Audience through V. Conclusion, with footnotes and appendices, p. 927-955
 
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  1. The Critical Ear

    While oral argument sound recordings are experientially rich, much of their content and format aligns with the merits briefs. (239) Similarly, the opinion announcement recordings customarily offer mere summaries of a case's outcome. (240) Only the Court's written decisions have primacy in expressing the law of the case. (241) Reading the Court's opinions is thereby economical and instructive in ways that studying of briefs, transcripts, or audio recordings can never approach. On the other hand, all of these types of extra-decisional resources impart concrete lessons on environmental litigation, including lessons that need not hinge on a case's outcome or significance. (242) Moot court participants often use fictional fact patterns and precedent, yet they engage in fruitful learning exercises. (243) Thus, the obscure oral arguments from a largely irrelevant case may, in a sense, be more edifying and worthwhile than the written opinion.

    Insofar as the sound recordings might be examined for what they teach of environmental law's substance, they share flaws that have also been ascribed to the Court's written decisional history. Professor Dan Farber, reflecting on the Supreme Court's "basic irrelevance" to environmental law, once observed that the environmental docket has markings of "hyperactive passivity," aside from an array of significant decisions rendered in the 1970s. (244) He concluded that the Court "has often chosen to hear cases involving insignificant issues or peculiar facts, which therefore have little precedential value." (245) In the nearly twenty years since Professor Farber made these observations, the Court has added significantly to its corpus of environmental decisions. However, many of his points remain valid, including the observation that the Court, by its institutional importance, "cannot avoid issuing significant opinions from time to time." (246) In recent years, the Court has opted to hear a greater number of cases in vital areas of environmental law, even as it still generally resolves the merits, where necessary, on narrow and technical grounds.

    While many of the cases in Appendix B may be of specialized interest, concededly few have broad or enduring legal significance to be of general interest. Indeed, some of them stand only as obscure artifacts of environmental legal history. Moreover, neither the soundscape nor the Court's written decisions can be trusted to capture the entirety of a dispute's history or its final resolution. The Court's docket can only be engaged with cautious appreciation for case aftermaths. Clean Air Act cases such as Hancock v. Train, (247) Adamo Wrecking Co. v. United States (248) and General Motors Corp. v. United States (249) for example, were each legislatively overruled. (250) Similarly, Environmental Protection Agency v California State Water Resources Control Board (251) was legislatively overruled by the 1977 Amendments to the Clean Water Act. (252) The snail darter's saga continued after TV A v. Hill with legislative amendments to the Endangered Species Act and other travails. (253) Examples are legion. (254) From administrative law cases made obsolete by subsequent rulemakings, (255) to an environmental case holding that was overturned by a subsequent decision of the Court in a non environmental case, (256) the environmental docket, sound recordings included, cannot reliably teach environmental law's substance so much as it teaches its flux and dynamism.

  2. The Greatest Oral Arguments in Environmental Law

    The best oral arguments are also characteristically dynamic. All else being equal, with limited listening time, it would be logical and most rewarding to focus on: 1) arguments where particularly skillful advocates face challenging questions and other pressures from the bench (i.e., skills display cases) (257); 2) arguments followed by opinions of enduring significance, where hearing the arguments would enrich one's reading of the opinion and overall understanding of the case (i.e., canonical cases) (258); and 3) multiple arguments with common areas of focus, as defined by the listener's playlist of interest. Scholars and practitioners in specialty areas--and aspirants to specialization--might listen to cases organized by procedural footing, such as citizen suit cases; by environmental statute, such as NEPA cases; or even by burden or amenity designations, such as air pollution cases. (259)

    Two already mentioned, overarching trends in the environmental docket are relevant here. First, the 1970s had a greater concentration of leading, historically interesting cases. (260) Second, oral arguments in recent years have become a greater spectacle, and recordings of those arguments may better convey contemporary advocacy pressures and lessons. (261)

    Identifying those cases of particular legal or historic significance could also be its own parlor game were it not for several past studies to measure the consensus of practitioners and scholars. In 2009, Professors James Salzman and J.B. Ruhl polled academics and practitioners for their views on the "most important" cases in environmental jurisprudence, including but not limited to the case law of the Supreme Court. (262) This followed an earlier study Professor Salzman conducted in 2001. (263) Comparing the results of the two studies, Salzman and Ruhl found that, while validating certain mainstays, there is a small bias toward recent cases of prominence. (264) The leading cases consensus includes golden age classics such as TVA v. Hill and Sierra Club v Morton, and administrative law classics such as Chevron, U.S.A., Inc. v. Natural Resources Defense Counsel, Inc., and Citizens to Preserve Overton Park v. Volpe. (265) Two newer cases, Rapanos v. US. Army Corps of Engineers and Massachusetts v. Environmental Protection Agency, have measurably attained blockbuster status across all demographics and practice fields. (266) Of course, at the margins, biodiversity conservation lawyers and land use lawyers might characteristically think higher of cases in their own specialty areas. Beyond this, it can be rewarding to not follow the crowd. (267) While status as a leading case may correlate with the interestingness of oral arguments and their perceived value, this correlation is not perfect. (268)

    For example, Chevron, despite its unquestioned status as a seminal case, did not make the Supreme Court Historical Society Ad Hoc Committee's list of "Significant Oral Arguments" from 1955-1993. (269) cases selected by the Committee from the Burger Court era, nine are environmental cases. (270) Of 121 cases that the committee selected from the first seven years of the Rehnquist Court, six are environmental cases. (271) These cases were picked as "important cases, but also examples of effective appellate advocacy," and these selection rates suggest that every year or two an environmental case is worthy of this degree of acclaim. (272) Now, with additional decades added to the docket and the digital proliferation of the Court's audio recordings, any person can make a playlist, listen, and form his or her own appraisal. (273) If one's interests lie in hearing arguments by the current leading lights of the Supreme Court Bar, one need not search far to hear them arguing environmental cases. (274)

    V. CONCLUSION

    As compared to Supreme Court transcripts, the Court's sound recordings are superior historical source materials. They are experientially rich, uniquely immersive, and allow listeners to experience the drama of the Court's open proceedings. They are also information rich. Many of the touchstones of effective advocacy--timing, tone, and smoothness of delivery--are inevitably lost in transcription.

    Echoing back to 1955, this trove of archival materials also captures the institution's historic engagement, though law, with the physical and social dimensions of the nation outside its marble confines. The subset of recordings that reverberate from the Court's environmental docket are no less an opportunity to be audience to the dramatic action between Justices and advocates. While they are not particularly or perfectly instructive on environmental law's substance, they give resounding lessons on the practice and history of environmental litigation. Collectively, these recordings give voice to the dynamics, the limitations, and, ultimately, the humanity of the Court when hearing disputes over earth resources and human impacts.

    APPENDIX A. A Chronology of Key Participants Solicitor Term and Chief Associate General ENRD Justice (275) Justices (276) (277) AAG (278) 1955 Warren Clark, Burton, Perry W. 1956 (Oct. '53, Frankfurter, Douglas, J. Lee Morton replacing Black, Minton (end Oct. Rankin ('53-'61) 1957 Vinson-- '56), Reed (end Feb. (Aug. '56- deceased '57), Harlan (start Jan. '61) Sept. '53) Mar. '55), Brennan (start Oct. '56), Whittaker (start Mar. '57) 1958 Stewart (Oct. '58, 1959 replacing Burton-- 1960 retired, Oct. '58), 1961 Whittaker, Harlan, Archibald Clark, Frankfurter, Cox (Jan. Douglas, Brennan, Black 61-July '65) 1962 Goldberg (Oct. '62, Ramsey 1963 replacing Frankfurter), Clark 1964 White (Apr. '62, ('61-'65) replacing Whittaker-- retired, Mar. '62), Harlan, Clark, Stewart, Douglas, Brennan, Black 1965 Fortas (Oct. '65, Thurgood Edwin 1966 replacing Goldberg-- Marshall Weisl, Jr. resigned July '65), (Aug. ('65-'67) White, Harlan, Clark, '65-Aug. Stewart, Douglas, '67) Brennan, Black 1967 Marshall (Oct. '67, Erwin Clyde 1968 replacing Clark-- Griswold Martz retired June '67), (Oct. '67- ('67-'69) Fortas, White, Harlan, June '73) Stewart, Douglas, Brennan, Black 1969 Burger Black, Douglas, Harlan, Shiro (June '69, Brennan, Stewart, Kashiwa replacing White, Marshall, vacant ('69-'72) Warren-- (Fortas--resigned May retired '69) June '69) 1970 Blackmun (June '70, filling Fortas vacancy), Black, Douglas, Harlan, Brennan, Stewart, White, Marshall 1971 Rehnquist (Jan. '72, 1972 replacing...

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