After Chief Justice John Roberts reiterated his opposition to cameras at the Supreme Court, Kansas Court of Appeals Judge Steve Leben took issue on the twitters.

Most judges in state courts believe part of our job is to educate the public about what we do. We will carry on. I’ve never seen a way in which educating the public about what we do and letting them see court proceedings (even through TV) has interfered with doing my job.

This raised a few questions, beginning with whether Judge Leben speaks for most state judges, whether it matters what judges “believe” regardless of what their prescribed statutory duties may be and whether it’s accurate to believe that they have a duty, beyond the job of judging, to “educate the public.”

But assuming the affirmative as to all of that, what does it mean to “educate the public”? Do cameras in the courtroom “educate”?

For lawyers, watching Supreme Court arguments would likely be illuminating, more so than reading the dry transcripts of oral argument. But then, lawyers (for the most part) are already somewhat educated about law, providing a foundation and context for what we’re watching.

It won’t stop some from grossly misstating what they observed in order to promote their agenda, but it will give others the basis to dispute those who would bastardize and dissemble for their political purposes, provided they had the will and interest to be “that guy” who publicly pointed out their fly was down, and thereupon became the target of virtiol from whatever group desperately wanted to believe the lies.

But what about the public? I queried the disconnected claim with a relatively inapt analogy,  does watching surgery teach you to perform surgery? Of course, Judge Leben’s assertion about educating the public doesn’t extent to being a lawyer, and hence my surgery analogy was poor at best. But the question remains, and went unanswered. Will anyone be educated?

We have an unfortunate tendency to leap over the gaps between a change, such as the introduction of cameras in the courtroom, and an outcome, such as educating the public. We make a huge assumption to connect the two, without ever questioning whether there is any logical nexus between the two. This is unfortunate enough when it’s just us groundlings doing it, but worse when it’s judges, upon whom we rely for soundness.

For the most part, the response when this unexplained gap is pointed out goes to the “what would it hurt?” side of the equation. It would make law more transparent to the public, and it’s unquestionably their “law,” a governmental process that exists to serve the public interest. So why not?

There’s the “Lance Ito” reply, who was the judge with the misfortune to try the OJ Simpson case, and whose handling of the most watched trial in at least recent history was roundly condemned. Television changed the trial, changed the judge. It was a made-for-TV trial and it influenced how everyone, witnesses included, behaved. The dynamic of trial was impacted by the cameras.

Judge Leben pre-emptively addresses this issue, saying that “I’ve never seen a way in which educating the public about what we do and letting them see court proceedings (even through TV) has interfered with doing my job.” If true, that answers part of the question, although it doesn’t answer the question of whether advocates will be influenced by the camera, whether putting on airs for the viewers (a la Avenatti) or chilling legal argument that might be sound and persuasive, but politically unpopular.

But is Judge Leben’s belief that cameras don’t interfere correct? It may be for him, and I’ve no reason to question his assertion, but will it be for all judges? It wasn’t for Judge Ito, but then, that was certainly an outlier case. Then again, watching oral argument is like watching paint dry, and it’s highly unlikely that there will be any more than a handful of personally-interested eyeballs watching any argument. Except when it’s a big case, a controversial case, an end-of-the-world as we know it case.

This is where the “educating the public” rationale falls apart. People approach a highly controversial case with the same bias and ignorance they do articles and editorials now, spinning their silly heads off to “win” the argument, to assert that their desired outcome is the only possible good faith, honest, legitimate outcome, and any argument to the contrary is not merely made in bad faith, but is evil.

Anyone making such an argument, of course, is evil as well, since only evil people make evil arguments. And any justice who asks a question or makes a statement that can be construed as sympathetic to the evil argument must, by definition, be evil. That’s a lot of evil going down.

Will the audience be educated by watching? Will watching oral argument provide non-lawyers with that day in contracts or torts when the rule of law at issue was taught? Or how to issue-spot or what test is to be applied when scrutinizing the issue? Does any of this matter, as long as people get to watch, even if they have no foundation to understand what they are watching, why an argument is proffered or a question asked?

Is it real to say, as Judge Leben does, that neither the substance nor dynamic of oral argument will be affected by cameras in the courtroom, knowing that an argument on an issue that is so controversial, so volatile and so fundamentally contorted in advance by advocates trying to promote their side by vilifying the other side that any judge who questions their orthodoxy risks having a dozen young people show up at the restaurant where they’ll be having dinner with the kids next Saturday night?

The question is rarely whether it can be done, or it whether there is an entitlement to demand it, but whether it serves to make things better or worse. Will cameras educate people? If so, and accepting that education is a good thing, we should have them. But will they?