The Supreme Court’s crazy foray into technology, the “teleconference” for oral argument, is a mere day away, and it can’t come soon enough for advocates of cameras in the courtroom. On the one hand, there’s the question of how this telephone tag will play out for the advocates doing the arguing. Experience ranges from “tastes like chicken” to “it’s awful,” based on the level of truthiness of the critic.
But there’s the “other hand,” that SCOTUS will allow us groundlings who can’t spend our days waiting on line for a seat in the courtroom to hear oral argument live. It’s not as good as livestreaming, but it’s real life in real time. For the first time, anyone who wants to listen can do so. Mind you, transcripts are available, but they require reading which, apparently, is more work than most otherwise passionate people are willing to put in. Or there are the post-argument reviews by pundits, which vary in accuracy from views that confirm the bias of the passionate to views that are totally garbage.
Now, there’s no excuse. If they want to know, all they have to do is call in. And if they can hear it via teleconference, it’s only a baby step to hearing and seeing it via livestream video. Oh frabjous day!
The arguments in favor of live video in the Supreme Court are strong. It’s the third branch of government and the people are entitled to see their government in action. It addresses issues of monumental significance in the lives of Americans, and the arguments made are worthy of public knowledge and consideration. It reflects how the “least dangerous branch” approaches its decision-making, lending to a greater public understanding of the integrity of the Court, the concerns of the justices, the issues at hand and the perspectives of the Nine in deciding how our lives will be framed under the Constitution and laws of the nation.
Why shouldn’t people be allowed to see this with their own eyes?
The arguments against opening up oral argument to public scrutiny are somewhat cynical. People without a legal education tend not to have the foundation to understand what they are seeing and hearing, to understand the arguments, to appreciate the constraints of the law, to weigh the argument. A little knowledge is dangerous, but seeing is believing and believing is seeing. Did I leave anything out?
When projects like Cornell LI began, the premise was that the law belonged to the people, and once the people had access to the laws and court decisions, they would be capable of understanding, appreciating and applying the law. I called this a Fool’s Utopia, the issue at the moment being a rape case where the legal issues were utterly ignored and the question, the only question, was whether the rapist would go free.
Law on the internet is a powerful tool. But like any tool, its utility is only as good as the skills of the person using it. Prosecutors in Connecticut used the law poorly, and as a result, a rapist may walk free. Writers at popular websites used the law poorly, and as a result, got a lot of people worked up about the wrong problem and made them stupider in the process. Clay Shirky thinks anybody can be a lawyer if we give them access to the tool, learning nothing from the potential of one rapist walking free because the tool was put in the hands of a bad mechanic.
The prosecutor in Connecticut was a lawyer. The writers were educated and interested in legal issues. The public just wants a freebie and couldn’t care less about making the effort to become truly knowledgeable. If this is the future of the law, it’s going to be a disaster.
This isn’t a problem that afflicts only non-lawyers. Mere days ago, the justice-elect of the Wisconsin Supreme Court, Jill Karofsky, wrote an op-ed about the election that studiously failed to explain the legal issues before the courts she condemned. It suggested that her new court and SCOTUS were blatantly partisan in their rulings, when her argument was a flagrant lie of omission. She totally misstated the issue and the rulings, and she’s going to be sworn in as a member of the Wisconsin Supreme Court.
Then there are the plethora of unduly passionate legal pundits, such as Stern at Slate and Milhiser at Vox, who manage to absurdly get it wrong in every decision they write about. Most of the time, you wouldn’t be able to discern the case they were writing about without expressly noting the name of the parties.
And then there are the twitter lawyers, the non-lawyers who twit their pseudo-legal jargon, laws and rules as they understand them to be. They will often link to such credible sites as Cornell LI to prove their argument, failing to grasp that they have misunderstood everything about the law and process in ways no most lawyers couldn’t even fathom. There’s @BadLegalTakes* to chronicle their misadventures, but the burden is too great to provide more than a cursory laugh.
These are the groundlings that the legal futurists promised would become as wise about the law as lawyers if only they had access to the foundational information about the law. Not only has it not worked, but it instead created a Dunning-Kruger-like certainty that their wildly bizarre beliefs were not firmly rooted in their misunderstanding of actual statutes and caselaw. No longer would they listen to a lawyer’s warning that they misunderstood the law; now they knew it for themselves and no shyster would turn their head from their truth.
Will exposing Supreme Court oral argument to the great unwashed make matters better? The unduly passionate will take away whatever they want to believe. They won’t grasp the limits of the issue presented. They won’t grasp the procedural posture or applicable rules. They will see the big picture, catch a word or phrase that gives their heart wings and believe, with all their heart and soul, that the Supreme Court is either absolutely right or replete with partisan hacks who must be eliminated at all costs.
The problem is not that it can’t give the public the opportunity to have a better and deeper understanding of the third, least dangerous, branch of government. The problem is that the public won’t see it that way via telephone any more than they do via social media. Instead, seeing the Court in action will create an unshakable belief that their bias, whatever it may be, is proven.
*There are a not insignificant number of lawyers whose “takes” are flagrantly wrong and bizarre. I would like to tell you it’s surprising, but I can’t. Being a lawyer is, sadly, no assurance that a person’s legal views aren’t batshit crazy or mindnumbingly dumb.
No comments:
Post a Comment