July 30, 2012
Shouldn't SCOTUS Records Be Format Neutral? No, Dull Stuff Wouldn't Educate the American People
In a nutshell, that's why Justice Scalia is opposed to televising SCOTUS processings according to an excerpt from the video C-Span interview Mark posted last week. Wearing his Originalist cap, Scalia added that the Constitution does not require televised proceedings. Well, that is certainly true if the Constitution is a fossilized document because multi-media did not exist in the late 1780s.
But is the argument for televised SCOTUS proceedings really about educating the American people about dull stuff only lawyers would understand? I don't think so. I would argue that if multi-media formats and the Internet existed in the 1780s, James Madison would have expected Congress and federal courts to use the format and platform as a way to ensure that government proceedings were open and accessible to all as one among many ways to create and distribute official public records. Imagine the wealth of information Originalists like Justice Scalia would have if the Constitutional Convention was "televised" and curated by C-Span... .
Moving forward some 200-plus years, take the case of the SCOTUS heathcare proceedings as an example. Differing nuances of the the healthcare oral arguments and questions from the bench have been noticed by law profs who opined different opinions based on whether they relied solely on the written transcript or also listened to the audio.
Shouldn't court proceedings (and legislative history, oops, sorry Justice Scalia) in the 21st century be format neutral? It is not a matter of boring the American public to death. It is a matter of providing as complete an offical public record as possible. Imagine practitioners, law profs and law students have access to official transcripts and equally official video recordings available for research and interpretation. That is certainly doable with today's technology and will, in my opinion, undoubtly be incorporated by commercial legal vendors in their enhanced electrontic products even if not deemed official evidence of the record. Citing to and incorporating by providing links to official videos of judicial and legislative proceedings will be common in court pleadings and secondary literature someday just as videos from patrol car cams are already used as evidence in DUI cases. [JH]