Bored or Crazy, They're Us
She was singing a different tune a couple of weeks ago, telling Charlie Rose that most Americans would not understand what goes on at Supreme Court arguments and that there was little point in letting them try.
“I don’t think most viewers take the time to actually delve into either the briefs or the legal arguments to appreciate what the court is doing,” she said. “They speculate about, oh, the judge favors this point rather than that point. Very few of them understand what the process is, which is to play devil’s advocate.”
I know, Charlie Rose? She's Sonia from the block, so you can't expect her to know better. But I digress.
Cornell lawprof Mike Dorf takes on her change of heart, that "the fear that the public wouldn't understand what they are watching" by "stating the obvious," that the
worries cited would not come close to justifying a ban on video coverage of any other official government proceeding if the burden of persuasion were placed on those who wanted to prevent such coverage rather than, as the Justices seem to assume, placed on those who want to permit such coverage.
I went over to CSPAN.com and randomly clicked on a House Subcommittee hearing on regulating the domestic use of surveillance drones. That sounds like it should be interesting, right? I was bored to tears in seconds. Okay, not quite tears but I was bored enough to stop watching and click on something else. This seems to me to be just about all the harm that would be done from having more generally uninformed people watch proceedings in the Supreme Court: More people would discover that they generally find the work of the Court boring.
Of course, no one is suggesting a "ban," but rather an initiation of change. Nor is the Supreme Court a house subcommittee (or any other part of the legislative branch of the government). Most importantly, there is no rule by which the decision to televise proceedings is made called the "Things that bore Dorf Rule."
While it may be true that most non-lawyers will find televised Supreme Court arguments a bore, that's neither an argument for or against openness, except to the people trying to sell advertising. Can you imagine Supreme Court oral argument with commercial breaks, like the NFL? It's really a pretty funny idea, cut to commercial, Clarence Thomas starts telling jokes, Kagan for make-up to get her nose polished, while Alito hits the green room for a donut. But again I digress.
It strikes me that Dorf's "boring" argument is not only irrelevant, but completely misses Justice Sotomayor's point. The point of televising oral argument is to expose the working of the Supremes to public scrutiny, and exposure to public scrutiny, whether thrilling or boring, is justified if it enabled people to be more enlightened and knowledgeable about how their government functions.
Therein lies the problem. Cornell Law School is the home of the Legal Information Institute, engaged in the worthy cause of bringing statutes and caselaw to the masses for free. By worthy, I mean that these things belong to us, done by our government officials on our dime, and are not, contrary to historic belief, the property of West Publishing or Lexis so that they can sell them to us at an absurd mark-up.
But there is a secondary, and far more dubious, aspect to the LII's purpose. They harbor the misguided belief that by making "the law" available to the public, it will enable anyone to play lawyer. As if a free copy of Grey's Anatomy meant anyone could perform brain surgery, there was an unfortunate inferential leap that may have sounded fine in theory, but would prove disastrous in practice. When I challenged this blind leap of faith, Bruce Thomas of LII didn't take kindly to being questioned, and demonstrated why the library was a better choice for him than the courtroom.
What Mike Dorf may not realize is that there are a great many people deeply interested in the law, particularly criminal law, some bordering on obsessed. They won't be bored. They will watch. They won't understand. They will think they do. They will act upon it, whether by deed or screed. While Dorf likely doesn't get a lot of comments at his blog expressing some of the craziest notions of what the law provides or allows, a brief trip to some non-lawyer sites on criminal law will be a revelation. They neither understand law nor process, but reflect the full force of the Dunning-Kruger Effect, with confirmation bias thrown in for good measure.
As a result, providing greater transparency doesn't illuminate for those who are deeply interested, but either bolsters misguided beliefs or enrages them. What doesn't happen is that they learn from what they see or understand that they're preconceived notions are wrong. They are never wrong, but the court is when it doesn't see things their way.
That said, I agree with Dorf's ultimate position, that oral argument before the Supreme Court should be televised, even though he thinks people will be bored. While I doubt it will be particularly illuminating, despite the LII's Utopian fantasy, it remains a core function of the judicial branch of government. In other words, it's ours, for better or worse. I don't doubt that Justice Sotomayor's concerns are legitimate, but so what?
Even crazy people vote, pay taxes and drive cars on the same roads as the rest of us. There is no requirement in a constitutional democracy that people be well-educated or knowledgeable, and even the ignorant get to see what their government is doing. And that includes the justices. So somebody watching will still insist that the gold fringe on the American flag means that the court is iLLegallY ConSTituted!!!
More to the point, I doubt Dorf (or LII's Bruce) realizes how many people still contend that the Supreme Court's John Bad Elk decision, authorizing the use of deadly force against an illegal police arrest, remains good law. And where do they find decisions like this? Why, they can find it at Cornell's LII website, of course.
These are your fellow Americans, for better or worse. Citizenship isn't contingent on whether their favorite loony tunes character is from Tasmania.
If there is a cure to the problem, it comes from those of us engaged in the practice of law, making as many of our friends and neighbors, clients and readers, more rather than less knowledgeable. If we stop enabling people from being crazier and angrier, we help to create a more enlightened citizenry, more capable of knowing about and exercising their rights and offering critical, but accurate, thought on the functioning of our government and particularly our legal system.
Yeah, it may be a bore, but at least we won't be making people stupider. And if you won't do it for me, at least do it for Sonia.