Opponents of the Affordable Care Act and the Obama Administration really could not have had a better week. They did a tremendous job framing their constitutional argument against the statute to the public, the lawyers on their side were brilliant, and it appears that they had a receptive Supreme Court majority. It was an eleven on a scale of one to ten.

Now this. The RNC released an advertisement (embedded in the story linked below) with audio from the halting beginning to Don Verrilli’s oral argument on the individual mandate to make the point that (as the ad’s title says) “ObamaCare: It’s a tough sell.” So far as I can tell, it is less a real ad that would actually run than a stunt intended to draw attention – no less a stunt than the DNC surely has done in lots of other contexts.

But Bloomberg News had the good sense to actually compare the actual argument audio with what the RNC distributed. It turns out to have been materially doctored. As the Bloomberg piece says, “A review of a transcript and recordings of those moments shows that Verrilli took a sip of water just once, paused for a much briefer period, and completed his thought, rather than stuttering and trailing off as heard in the doctored version.”

I’ve been in practice for seventeen years, and the blog has existed for ten, and this is the single most classless and misleading thing I’ve ever seen related to the Court. It is as if the RNC decided to take an incredibly serious and successful argument that has the chance to produce a pathbreaking legal victory for a conservative interpretation of the Constitution, drag it through the mud, and vomit on it. I would be shocked if a serious conservative lawyer would stand by the ad.

The RNC’s supposed point is that the Administration’s own lawyer’s argument demonstrates that it could not defend the individual mandate. But to then manipulate the audio is seriously misleading to the listener and at best succeeds only in distracting from the point. How can the Administration’s presentation prove the RNC’s point if it isn’t actually what happened? If it is just fine to pretend, why not just insert someone with the same voice as Verrilli saying, “Mr. Chief Justice, we believe the individual mandate should be upheld because we hate the Constitution?”

The ad is particularly distressing because I feel like the health care arguments were a tremendous moment in which the public really focused on the Court and on critical questions about the meaning of the Constitution. And in that moment, conservatives were well ahead in their explanations to the public for why their interpretation is the better one. This ad cheapens and diminishes all that effort.

It probably also sets back the effort to get the Court to become more transparent. As Amy pointed out to me, the Justices now have before them a perfect illustration of the gross distortion that can instantly be made of recordings of their proceedings. What is to stop the same misleading stunt being pulled with the Justices’ own oral argument questions and comments? Nothing at all. The Court made a special exception in releasing the oral argument tape for the health care arguments so promptly, and it probably will hesitate before doing so again. If there were any chance that the Justices would permit cameras in the Court, I do not see happening now.

Recommended Citation: Tom Goldstein, The RNC shoots itself in the mouth, SCOTUSblog (Mar. 29, 2012, 8:01 PM), https://www.scotusblog.com/2012/03/the-rnc-shoots-itself-in-the-mouth/