A Supreme Experience
The political rancor in this country has gotten to ridiculous (and sadly quite precedented) levels. But I have found a part of the government that is fascinating and impressive and gives me hope.
It turns out that you can listen to the oral arguments presented before the Supreme Court in full on YouTube. CBS, PBS, CSPAN and others publish the full audio, and some channels even put the name and picture of the current speaker on the screen as a convenience.
All you have to do is search “Supreme Court oral arguments” on YouTube.
Now, why would anyone want to listen to dry debates on tort law and stare decisis? Because it’s the opposite of what you find just about everywhere else when discussing controversial or difficult political subjects. All of us know what happens when politics or religion or guns or abortion or free speech comes up on any type of social media:
But Supreme Court arguments start out with and almost always maintain a wonderfully high level of respect and decorum. If a female lawyer is arguing abortion law, no justice would every ask her whether she’s had an abortion. In 2nd Amendment cases, no one is called a “gun-grabber” or “gun nut.” It is a group of smart adults (the lawyers) trying to persuade other very smart adults (the Supreme Court Justices) to adopt a certain flavor of position that gives the lawyer the best shot at getting a favorable judgement.
And when you want to persuade a smart, well-read person (which all the Justices are), you work extremely hard to address the best arguments of the opposing side, not the worst arguments. It is so bizarre and shockingly pleasant to actually hear this being done in real life.
This is called Steel-manning, and it is the opposite of Straw-manning your opponents. Steel-manning is a term that as best I can tell was invented on the LessWrong forums1 site and recently popularized by Eric Weinstein in 2016 to name the effort one makes to put forth the best version of the argument of the person you are debating, and then address that best argument.
It can also mean making every effort to fully understand what your interlocutor means, rather than letting misinterpretations creep in. Usually this involves stating the opposition’s position and then asking them if that is a good representation of the position they are taking. If they assent, then you proceed. The Supreme Court format doesn’t allow one side’s lawyers to talk directly to the other side’s lawyers, but it is surprisingly common for the Justices to step in and do the Steel-manning themselves so that the opposing lawyer can address the strongest arguments.
The net effect for the listener is tremendously positive, in that you get top quality breakthrough of your political bubble. Red and Blue Bubbles are a real problem currently in America. Team Red only listens to Red news and Team Blue only listens to Blue news2. Bubble Think, where you only hear the side you already agree with, causes people to have very shallow political or philosophical positions. Iron sharpens iron, and hearing a strong argument for a position you disagree with might change your mind or at least encourage you to brush off the rust from your own position and sharpen it.
There is nowhere else on the planet better than listening to Supreme Court arguments to hear someone annunciate the very strongest arguments for both sides of a position. On top of that, extremely smart people then debate and pick apart the minutiae of each argument. And they do so with admirable respect, calmly narrowing in on the weak and strong parts of each argument with almost surgical precision.
If you can have the internal humility to hear a side you disagree with, I can almost guarantee you will grow a little as a person.
The next wonderful thing you will find in listening to these arguments is the deep historical law context that is almost always part of the arguments. When debating Open Carry Laws in New York, what is the history of gun restrictions in Texas in the 1800s? How did women deal with unwanted pregnancies around the time of the framing of the Constitution? How many states mandated vaccines during the 1918 Spanish Flu, and what role did the Federal government take at that time? These people did deep research, and both sides and the Justices can name entire sets of laws and court cases by name, off the tops of their heads.
You don’t just get to learn a list of cases, though; but rather they discuss the thought processes behind the decisions of those cases back in 1872 or 1919 or 1937. This enlivens history because it not only illuminates the thinking of our ancestors long gone, but provides a direct connection between how they lived their lives and how that affects the decisions of the modern court system…which then affects our lives. History really does come alive in many of these proceedings.
One of my very favorite things to savor in these proceedings is the chess game. The lawyers usually know how perhaps six of the nine Justices will vote on any case. But they can’t openly let on that they are really only arguing to three Justices. Further, they can’t make direct emotional appeals or point out any personal votes from any point of the careers of any of the Justices, as that would just be improper.
Instead, the lawyers have to find a way to give certain Justices an excuse to vote a certain way, or else tear down that excuse they may have for voting that way. If you want Roberts to uphold a New York ban on concealed weapons permits, you need to pull the rug out from under his excuse to override state’s rights using the historical findings in Heller (which allows for in-house hand gun ownership for self-defense). If you want to get Breyer to agree to let states decide their own abortion laws, you need to convince him that stare decisis, the respect for previous court decisions, is outweighed by the flaws in Roe v. Wade’s reasoning on the weight of fetal rights vs women’s rights. Once you spend a little time listening, you start to sense these fights happening between the lines, and they are like watching a heavyweight bout, but with decorum and respect.
It is so rare that you really get to hear truly intelligent people at the very top of their game, but that is pretty much all you hear in these Supreme Court proceedings.
What’s truly funny is when a lawyer is doing worse than one would hope, and a sympathetic Justice will throw that lawyer a life-preserver by asking them a question that gets them back on track. The Justices know each other intimately. Kagan can see a lawyer stumbling into a hole of their own making that Alito will capitalize on when his turn to ask questions comes up, so Kagan will guide that lawyer to discuss some unexpected aspect of related history that helps that lawyer dig himself out of the hole before he’s torn to shreds (politely) by Alito.
Finally, I think you will also be surprised to find out how un-political the Court is. Yes, certain Justices usually vote a known way on certain subjects. But Ruth Bader Ginsberg, one of the most liberal justices in my lifetime, and Antonin Scalia, one of the most conservative justices in my lifetime, voted the same way in 70% of their cases. And most justices vote together more often than that, even today:
So while the court is not perfectly a-political, it is certainly not some group of tribal3 hot-heads, either.
Maybe we can follow suit.
https://www.lesswrong.com/posts/FhH8m5n8qGSSHsAgG/better-disagreement
Though I would have to say, the more widespread media leans blue, so it’s pretty hard for Red Team to not hear the Blue news information. But they sure try not to, and vice-versa.
Political Tribalism is the most common form of insanity. I mean this literally and fully.
While practicing law can be depressing, one thing that makes me happy is the legal arena is one of the last places where you have at least a shot of someone deciding in your favor even when they disagree with you as a policy matter.
If you enjoy the purity of SCOTUS, the district courts and federal appellate courts can often be even less policy driven than SCOTUS, whose limited jurisdiction requires them to hear the most controversial issues.
IMHO, SCOTUS is a reflection of the times and there was much less polarization 10-20 years ago before congress got better at picking justices who aligned with their views... nonetheless, I admire SCOTUS as a place where the BS of politicians would never fly and is a respectable Battlefield of Ideas.