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Wednesday, January 01, 2020

How does a descendent of Huguenots, son of a fur trader . . .

The 2019 Year-End Report on the Federal Judiciary begins, as always, with an historical ditty. This year, it is the Doctors Riot in New York in 1788 as the reason that, as the lyrics in Hamilton tell us, "In the end, they wrote eighty-five essays, in the span of six months/John Jay got sick after writing five/James Madison wrote twenty-nine/Hamilton wrote the other fifty-one." Kudos to Roberts for the line "perhaps if Jay had been more productive, America might have rewarded him with a Broadway musical."

The theme this year is civic education and the essential role of individual judges, the courts, and the judiciary in providing that civic education. Roberts writes:

It is sadly ironic that John Jay’s efforts to educate his fellow citizens about the Framers’ plan of government fell victim to a rock thrown by a rioter motivated by a rumor. Happily, Hamilton, Madison, and Jay ultimately succeeded in convincing the public of the virtues of the principles embodied in the Constitution. Those principles leave no place for mob violence. But in the ensuing years, we have come to take democracy for granted, and civic education has fallen by the wayside. In our age, when social media can instantly spread rumor and false information on a grand scale, the public’s need to under-stand our government, and the protections it provides, is ever more vital. The judiciary has an important role to play in civic education, and I am pleased that the judges and staff of our federal courts are taking up the challenge.

Three other things are sadly ironic. One is that the Court is poised to resolve cases involving congressional subpoenas that should be easy in a democracy--Congress can investigate a President, including through subpoenas of unconnected third parties, however it sees fit--but that seem to be genuine toss-ups given current political divides. Two is that the current President has done more to use social media to spread rumor and false information on a grand scale and the Court, when pressed, has fallen in line and may do so again.

Three, and away from the politics of the day,  Roberts does not mention the role that video or audio-recording-with-speedier-release of arguments could and should play in this civic education. He mentions courts posting opinions* online, giving the "public instant access to the reasoning behind the judgments that affect their lives." Wouldn't "instant access" to the public arguments leading to the "judgments that affect their lives" provide a similar public civic-education benefit?

[*] He does offer a nice description of the distinction between an opinion and a judgment--"judges render their judgments through written opinions that explain their reasoning." That distinction is key to judicial departmentalism and the non-judicial branches engaging in meaningful constitutional interpretation. More on that later.

Posted by Howard Wasserman on January 1, 2020 at 09:26 AM in Howard Wasserman, Law and Politics | Permalink


I fail to see how video arguments will educate lay people who are not conversant in cases being cited, in legal principles, in the fact that advocates rarely "argue" before the Court but rather field questions, mainly because a case's details are known so intimately by the advocates and justices before arguments. I think lay people would find the process confusing at best.

To quote Kingsfield, most of society does not "think like a lawyer". It takes three years of specialized study to reach that point and then a lifetime of practice. The early 20th century progressives were certain that a "new man" had emerged--with access to more information and more formal education for more of the population than any previous generation. They believed this "new man" ready to take the reins of government.

The early 20th century progressives--like the Founders prior to the Constitution--were wrong. And we still haven't stopped paying for their mistakes.

As a result, I don't see the value in increasing the lay person's access to an institution that cannot withstand anymore activism from "the people". It's already teetering under the enormous weight shifted onto it by the 17th Amendment and party primaries. And, in truth, in the end it'll probably prove unable to bear that weight.

Posted by: thegreatdisappointment | Jan 1, 2020 7:28:12 PM

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