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First of all, oral argument is usually a waste of time. Now that it’s televised, it will be even more of a show. Appellate judges almost always base their opinions on the written briefs and thirty minutes of oral argument isn’t likely to change anyone’s mind. And, by limiting oral argument to only thirty minutes, the Circuit judges are indicating that they don’t want to allow for the opportunity to be persuaded to change their minds. 30 minutes is window dressing, the bare minimum to obtain public acceptance and legitimacy.

Second, I think Shelley (or at least the Deputy Attorney General who wrote the brief) is playing it straight here. Admittedly, the Costa brief and the Shelley brief emphasize different arguments — but that’s a good thing. The Costa brief didn’t touch on deference owed to the trial court on questions of injuctive relief, or the balancing test that the Court must conduct when weighing the factors in support and against issuing an injunction.

In any event, the briefs were limited in both length and in the time allowed to prepare. And with the original decision so bad, there was certainly a lot to say.

Third, When Costa criticizes the Shelley brief, it’s only so he can get a little of the speaking time. He is, in other words, making an argument. What’s he supposed to say? “Oh, that Shelley brief is really really good and says everything that needs to be said, but can I talk anyway?”

Look, I read Shelley’s brief and was impressed. In fact, I thought it was better done, and more convincing, than Costa’s brief. But if Costa and Shelley ended up arguing the same points, what a wasted opportunity that would have been.

I just don’t think there’s any conspiracy here. Shelley, and the Deputy A.G., are playing this straight.