The legal profession can -- and should-- help to instruct the general public about this country's all-important institutions.
Multiple forces in modern life work to detract from Americans' ability to understand, navigate, and re-shape the country's civil institutions. These forces include, to name a few names: declining emphasis on social studies in our schools, the shrinking capabilities of news organizations, and the prominence given to the brashest of headlines. A post-industrial society flooded with more "information," complexity, and interdependence than ever before," and fewer genuine aids for making sense of it all, make for a deadly combination.
Judges and lawyers have traditionally not viewed themselves as having a central role in public education about law and government. We thought that other elements of society had ownership of that task. But the diminished capacity of some of these elements (especially the incredible shrinking press), suggest that the profession must be more assertive on this front.
Courts and judges in particular are well suited for making a difference in civic education, standing as they do in the public mind as reasonably honest brokers of disputes and information. For that purpose, technology is our friend.
The role of cameras in American courtrooms is an easy case in point. The nation's judiciary banned cameras in the 1950's after a series of dreadful experiences in which court proceedings were disrupted by the equipment of the era and only the most dramatic trial moments made it to air. A plausible threat to due process with little concomitant reward.
The opportunities half a century later are quite different. Web broadcasts managed by the courts themselves are relatively cheap, and the equipment is undisruptive. Web audiences are informed and engaged. Webcasts can offer something akin to gavel-to-gavel coverage and thus place less highlight on the salacious. These techniques can even broaden the contribution by Old Media: the Indiana courts recently authorized trial court broadcasts delivered through the web pages of newspapers.
And when courts do act on matters of broad public interest, it shouldn't be above our pay grade to take into account how the public will receive the message. Judges used to declare, "The opinion speaks for itself." It frequently didn't do that very well. When I write opinions about matters of high visibility, I work pretty hard on the opening hundred words.
And we should give the public and the press a fighting chance to absorb what we write. For example, when the Ninth Circuit Court of Appeals decided in 2003 that the recall election of California Governor Gray Davis could go forward, the court's decision and opinions were ready in early evening. The Chief Judge, concluding that a few hours delay would not affect the course of events, announced that there would not be a decision that night but that all concerned could expect a hand-down first thing the next morning. This gave the press and the voters a full, fresh day to absorb what the court had said. By contrast, the U.S. Supreme Court issued its dispositive decision in the 2000 presidential contest around 10:30 p.m. The nation thus first heard about the ruling from reporters standing amidst klieg lights on the Court's steps, dividing up the reams of paper and simultaneously digesting and explaining as they read the Court's decision on the fly.
Of course, public understanding of our institutions begins with what we teach our children. Here, too, the legal profession has greater capacity than it uses.
The Indiana Supreme Court has a staff which works to help teachers and students understand the legal system. They use a variety of techniques: lesson plans on how to teach famous cases that illustrate important legal concepts; an electronic legal history museum; education events in courtrooms and public schools, including interactive plays written around landmark decisions; a publication series in both digital and hard copy to make for easy access by student researchers; webcasts and archives built around all of these efforts and more; and personal appearances by lawyers and judges. When the 200th anniversary of Abraham Lincoln's birth rolled around, for example, hundreds of volunteers went to speak to tens of thousands of students about "Why It Mattered that Lincoln Was a Lawyer." It was a springboard for conversations about the rule of law.
A national effort in this vein is led by former Justice Sandra Day O'Connor. Under the banner of "iCivics," civic leaders and people from the legal profession are creating free and innovative educational materials aimed at helping young Americans become knowledgeable, engaged citizens. Online electronic games like "Branches of Power" and "Do I Have a Right?" draw lots of clicks in middle schools. The National Center for State Courts has likewise launched graphics-based novels, serious comic books, if you will, about the legal system.
What do people know about lawyers and the rule of law? Do they have confidence in what courts do for society?
The vitality of the American experiment in government, and the nation's adherence to the rule of law as the chief mechanism for shaping its civic future, inevitably depend on how firmly the country's citizens grasp its institutions and engage in reforming them. "If a nation expects to be ignorant and free in a state of civilization, it expects what never was and never will be," said Thomas Jefferson. I've seen first-hand the difference in public engagement that energetic outreach by the legal profession can produce.