Panic Street Lawyer: How SCOTUS works

Sunday, 30 June 2013 06:00 AM Written by  Jay Hornack

20120401wap supremecourtAtop 150A few days before I came up with the ending for last week’s Panic Street Lawyer, I received a very thoughtful gift in the mail. It was the third printing of “How Music Works,” the eighth book written by David Byrne. The gift arrived in time to stop me from using yet another song title – such as this one -- for today’s PSL title.

Byrne is best known as a musician, specifically as the singer/songwriter/guitarist for the band Talking Heads. That band formed in 1975 and made eight studio albums, the last one in 1988. Talking Heads last toured as a live act in the U.S. in 1983 (their August 13 performance at what was then called the Stanley Theater was a truly memorable one). From that tour in support of their “Speaking in Tongues” album came the critically acclaimed documentary film Stop Making Sense. All 4 members last performed together at their 2002 Rock and Roll Hall of Fame induction ceremony.

Since the 1980s Byrne has made nine solo studio albums, including two collaborative efforts with Brian Eno a/k/a Eno (Byrne’s last musical performance in Pittsburgh was in support of their 2008 collaboration “Everything That Happens Will Happen Today”). The September 2012 release date of Byrne’s latest solo album, a collaborative effort with Annie Clark a/k/a St. Vincent entitled “Love This Giant,” was a few days before the publication date of “How Music Works.” Byrne and St. Vincent perform together at the Palace Theatre in nearby Greensburg tonight.

This concert comes at the conclusion of a big week of U.S. Supreme Court decisions, including decisions in two high-profile same-sex marriage cases. So I anticipate the audience to be in an extra celebratory mood tonight, just as the crowd seemed to be in a happier than usual mood when I saw Byrne perform at the Carnegie Music Hall in Oakland a few days after the 2008 election of President Obama.

Reading “How Music Works” the same week that I was reading judicial opinions in the final week of the Supreme Court’s 2013-14 Term made me look for some overlap. Were there any applications to SCOTUS in a book that is about “how [music is] performed, how it’s sold and distributed, how it’s recorded, who performs it, whom you hear it with, and, of course, finally, what it sounds like?”

A Google “how SCOTUS works” search brought up first a CNN primer: “a look at the history of the court, how it works and how you, the citizen, can interact with it.” But instead of following that piece’s outline here, I picked a few “How Music Works” chapter headings and applied some of Byrne’s words of wisdom under those headings to the U.S. Supreme Court.

My Life in Performance

20130630wap scotusargument 150In Chapter 2, Byrne takes us through nearly five decades of his various stage personas, with details from subject areas such as clothing and choreography. After discussing his use of dancers on stage during his 2008 “Everything That Happens…” tour, he says that that experience made him realize that

there were lots of unacknowledged theater forms going on all around. Our lives are filled with performances that have been so woven into our daily routine that the artificial and performative aspect has slipped into invisibility…

Two examples of these forms, according to Byrne, are political speeches (“and I don’t think there’ll be any argument that they are in fact performances – the hair, the clothes, and the gestures are all carefully thought out) and public announcements of all kinds (“it’s all show biz, and that’s not a criticism”).

The Supreme Court has its own “unacknowledged theater forms” that the vast majority of American citizens have never seen; namely, oral arguments and the reading of the decisions from the bench. Moreover, the reading of the decisions is also not available in audio form, unless you happen to be in the courtroom to hear it live (oral arguments have been recorded since 1955, although it was not until 2010 that the public could hear the recorded arguments in the same term that they occurred).

I believe that Supreme Court oral arguments and the reading of decisions should be available to the American public in both video and audio form and in real time. Persons with the ability to hear should have been able to detect the tone of voice being used, for example, when Justices Ruth Bader Ginsberg and Antonin Scalia read their separate dissenting opinions this week. And persons with the ability to see should have been able to observe Justice Samuel Alito “shaking his head and appearing to roll his eyes” during Ginsberg’s reading. SCOTUS should be more of a shared experience.

Technology Shapes Music: From Analog to Digital

20130630 scotusbloglogo 150The primary way that many people, including myself, share the experience of Supreme Court Decision Announcement Day this decade is via Twitter. But as reported, the Supreme Court itself has “the luxury of appearing publicly oblivious to the swirl of social media,” as its decisions “remain stubbornly opaque until they are handed out (on paper, first) by the court’s public relations staff.”

In Chapters 3 and 4 of “How Music Works,” Byrne lays out the amazing historical progression from the first sound recordings to music software today. As you read how Byrne adjusted to making music differently over time while Chief Justice John Roberts remained a relative Luddite since taking over in 2005, you may find it hard to believe that the two men are only three years apart in age (Byrne is 61 and Roberts is 58).

Some in the legal profession have benefitted from the Supreme Court’s analog ways: SCOTUSblog now has over 130,000 followers on Twitter, and co-creator Tom Goldstein is greeted like a rock star on “The Daily Show.”

In The Recording Studio

Chapter 5 of Byrne’s book opens up to the public the process by which musicians create recorded music. Likewise, much has been written about the process used in writing Supreme Court decisions (and in writing good legal briefs to the Court).

But there is one place in the Supreme Court that is likely to remain off-limits to the public: the post-argument conferences where the nine justices discuss and vote on the cases. Not even staff or clerks are allowed in these closed-door sessions.

The fact that these conferences are private does not mean that the process is entirely a mystery. I am quite certain that, for every high-profile case since 2006, Chief Justice Roberts starts the conference by turning to swing vote Justice Anthony Kennedy and asking him "Qu'est-ce que c'est?"


The Panic Street Lawyer is a personal opinion column by attorney Jay Hornack. Contact him right here at This email address is being protected from spambots. You need JavaScript enabled to view it. and follow Jay on Twitter: @panicstlawyer

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