The First Monday On The Telephone

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.

13 thoughts on “The First Monday On The Telephone

  1. Hunting Guy

    I don’t see a problem.

    The only people that will follow telephonic arguments are folks that already follow the SC via print.

    There will be a novelty factor at first but those are the internet lawyers with the attention span of a grasshopper and they will move on to something else very quickly.

    Give it a couple of weeks and it will go back to status quo.

    1. SHG Post author

      In general, that’s true, but when the Court hears a case that the public perceives as huge, say abortion or gun rights, that sort of thing, people will pay attention.

  2. Richard Kopf


    You are so right. Yet . . .

    I remember (albeit dimly) my first exposure to the Socratic method employed in the old fashioned hard way and even now used by many of the Justices. It took me my first year of law school to get over it and begin to understand the importance of being pushed hard intellectually. There is no chance that the great majority of lay people will understand the Supreme Court’s process of often seemingly rude questions let alone the substance underlying them.

    Having said the foregoing, I am glad the Supreme Court is opening this up. While the partisans will do as you say, there may be a slight silver lining.

    Some years back, the Chief Justice authorized a pilot project for video recording of civil proceedings by the Clerk, uploaded as fast as possible to the website of the participating court. The project is now over. We participated in the project but had no takers. Still, I continue to believe that federal trials, particularly jury trials, might well serve the public interest if only by making them transparent.

    In my perfect world, that would especially include federal criminal trials and sentencing proceedings. If the Chief sees that the world did not end by live audio streaming of arguments before the Supreme Court perhaps the Chief will become less resistant to opening up the federal trial courts. I have no hope that will occur in my lifetime, but I hold out cautious optimism for the future.

    By the way, I see the federal trial courts as needing the disinfectant of transparency far more than federal appellate courts and the Supreme Court. That is particularly true at sentencing. When a 23 year old pregnant woman with two kids and no criminal history gets life in prison for schlepping huge amounts of crack, the people should be able to see and hear what happened. The trial courts are where the rubber of the law meets the rock hard road of the law. Our electorate should see in near real time what they have authorized in their name.

    All the best.


    1. SHG Post author

      There’s a very real difference between what happens in a trial court, from trial to sentence, as opposed to legal argument on appeal. Watching a 23-year-old pregnant woman get sentenced as a kingpin for being a mule under the guidelines is comprehensible without any depth of legal knowledge. Can the same be said for a standing question on a hot button issue?

      Transparency is only as good as the capacity to understand what one is seeing. Otherwise, D-K kicks in.

      1. bmaz

        Welp, oral arguments have been on live video in the Ninth Circuit for quite a while now. The production quality is pretty good and it is a service to the public. The court has not only not melted down, I think the feedback has been pretty healthy for it. I have certainly thanked them. There have also been regular District trials in CAND televised as well, whether live or on very short delay. The first one I recall was the Prop 8 trial, but it worked quite well. I agree with Judge Kopf that it would be a good thing to do more of that, although I see no basis to favor criminal over civil in this regard. There are not that many trials going on at any given moment, even in a big jurisdiction like CAND, this could be done.

  3. rxc

    A little bit of knowledge can be a dangerous thing, in every field of knowledge. I think that I am a bit to the right of the peak on your curve, and am definitely NOT a lawyer, but I think that you do the public a disservice by deprecating our ability and desire to understand how the legal process works. Yes, there are people who will say stupid stuff after watching/listening to a SC/CA/DC hearing/trial. This sort of argument only keeps the laws and the law books locked up and out of the public domain, because the people won’t understand or appreciate them.

    There are a lot of technical issues in our civilization that affect people’s lives that they cannot really understand, but they still express their opinions about these issues. I think that this is part of what you lawyers call “the First Amendment”. And the people need to see what goes on in court if they are going to provide feedback to the legislature, where the laws are made, usually by lawyers. Another part of that “First Amendment”. To shut the people out of these proceedings because they can’t appreciate the arguments being made is condescending, and not much different than calling them deplorable.

    Lots of lawyers don’t really understand technical issues, but they feel qualified to argue one side of a technical argument in a court, to influence a jury to decide one way of another. Usually, in these cases, there will be a few technical people in the room who really understand the issue, but they don’t have the verbal skills to frame their arguments in a way that meets legal standards, or influences jurors or judges.

    The laws and regulations should all be available to everyone to read and try to understand. The hearings that are open to the public should also be televised, for everyone to watch. You cannot have an informed citizenry if you keep them in the dark and feed them manure.

    1. SHG Post author

      Lack of technical education and experience isn’t condescending. You can’t do brain surgery either. It doesn’t make you deplorable, just lacking in the necessary education and experience. If you’ve spent any time on twitter, you’ll see ten thousand people who believe they know enough to understand what the law is about. They’re wrong, loud and certain.

      1. rxc

        I agree that there are lots of people out there who think they know about something, and are just plain wrong. I worked in a field where this was particularly true, so I understand the concept. But the law is something that everyone in society deals with, every day, even if they never have to go to court for anything.

        Shutting people out of the conversation just makes them mad and then they end up doing really stupid stuff. If a court proceeding is open to public observation, the only reason I can see to avoid broadcasting is grandstanding by the participants, and maybe jury influencing. The OJ trials were a real circus. It happens. But it is going to happen, in any case, out on the courtroom steps or now in social media.

        I used to work in the nuclear industry, and I used to advocate for all of the internal deliberations in the plant to be open to public scrutiny, by representatives of local governments. Most of these meetings are deadly dull, and the reps would have a very steep learning curve but after sitting thru monthly training meetings, and QA sessions, they would eventually come to understand how much of the work was mundane. Give them a call in the middle of the night every time something breaks, and invite them out to see how the repair plans are made and executed. Sure, there will be some crazies who will over-react, but then they can’t argue that you are covering stuff up, and they will eventually see how dull it all is.

        Do the same thing with the courts. Right now, the only stuff they know is what they are fed on TV dramas, which is far from reality.

        1. SHG Post author

          You can discuss brain surgery all you want. You still can’t do it, not even if you closely, seriously and diligently watch it being done.

          1. Doug Fawcett

            Respectfully, that’s exactly how medical students learn to do brain surgery.

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