The SCOTUS With the Mostus

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Watching, or rather listening to, the tape-recorded arguments between the Bush and Gore lawyers before the Supreme Court this morning — an unprecedented airing of same-day audio — you had to wonder whether "The West Wing" creator Aaron Sorkin didn't pick the wrong branch of government to write about. We already see plenty of the world of White House staffers, after all, every time an insider quits and writes an overremunerated memoir. But the Court, now there's an intriguing world. The sex-scandal-haunted black conservative! The mysterious, John Cage–like nebbish who infuriates his Republican sponsors by going liberal on them! The plucky woman jurist coming back from cancer! Make 'em all 40 years younger and tighten up those robes and you've got ratings gold. POTUS, make room for SCOTUS!

The Court is such untapped material for TV, of course, because of its antiquated and contemptuous refusal to allow the people who pay its bills to watch it work. However the court decides, today's small gesture of glasnost should be the first step toward finally raising the electronic drawbridge.

The nerdishly intense proceedings, riveting in spite of the lack of video, were no less spirited or probing for the presence of microphones. The dearth of pictures did, however, leave the cable news networks that carried the hearing stretching to make the tapes visually dramatic: CNN busied up its screen with a collage including the presidential seal, a picture of tape machine reels, head shots of attorneys and Justices, closed captioning and a live shot of the SCOTUS building; MSNBC added goofy computer-generated animation that zoomed through a digital court building as they tape played, reminding us why the Sony PlayStation has no videogame set in a federal courthouse.

Granted that the networks had to put something on screen, some of the choices were crass enough to mortify the no-cameras-in-the-court purists; CNN's choice to show the courtroom "won-loss" record of lawyers, for instance, was the sort of knee-jerk ballgame mentality that confirms 24-hour news's worst tendencies. But the visuals were beside the point: The verbal back-and-forth itself was not only riveting but a salutary thing for the whole polarized country to hear, even if most of us could understand one out of every three terms.

Why? The legal particulars aside, the vigorous and attentive grillings of both sides showed, refreshingly, that whatever its failings, our Supreme Court is a body based less on partisan agendas than on the principle of being skeptical, contrary cusses, knocking around those who would dare petition them like ping-pong balls. Some cameras-in-the-courts detractors say that's why it's useless to broadcast SCOTUS hearings live: Under this questioning, even for lawyers it's often impossible to tell whose side the adversarial judges are really on until they rule.

Duh — that's exactly why people need to see this. In every other branch of government — and every other corner of cable news — it is all too screechily easy to tell exactly which side everyone is on. If nothing else, it's good to see one branch of government where some people are actually willing to be vigorous devil's advocates rather than one-note partisan terriers.

Agree with his judicial philosophy or not, for instance, but Antonin Scalia's dripping sarcasm alone could fuel a small cable channel's ratings. Under questioning, Florida secretary of state lawyer Joseph Klock began, "We have not addressed the federal issues, because —" Scalia cut him off: "Well, this is a federal court!" To Laurence Tribe, on the question of whether the Florida legislature might have "invited" the state supreme court's intervention, Scalia — alluding to legislature's disdain for court action, sneered, "Maybe your experience of the legislative branch is different from mine."

The flow of the argument — adversarial, but often bordering on the arcane, at least for this idiot — also showed that some of the arguments in favor of broadcasting the court's sessions are probably exaggerated. In particular, the idea that the raw video would truly educate the viewing public more than legal analysts do seems a bit bogus, what with all this abstruse section 2 and section 5 and section 15 business. More likely, we laymen will focus on who gets off the best zingers — our armchair analysis determined by our pre-existing beliefs — then let Rush or Chris Matthews spin it for us as usual. On the other hand, if anyone was grandstanding for the benefit of the Nielsen families here, as courtroom-camera critics maintain, they were doing a lousy job of it. (With the possible exception of Laurence Tribe, who sounded well-stocked with Gore camp sports metaphors, likening the deadline extension to checking a "photo-finish" rather than "changing the rules after the game.") No one rhymed, blustered or whipped out gloves. Perhaps because the "jury" the lawyers were addressing here would be likely to tear them a few new orifices if they went all Dylan McDermott in this courtroom. (And note that the unprecedented SCOTUS tapes turned out to be so titillating, so entertaining, that the major networks didn't bother bumping their soap operas for them. Court TV stuck with the Rae Carruth murder trial.)

Would letting cameras in have ill effects sometimes? Maybe. OK, probably. But this is a country where we don't submit to such considerations. Democracy itself has ill effects sometimes. Voters make bad choices; look at any list of California ballot propositions. We stick with democracy, not because it's always the best system, but simply because it's the right one.

America is what it is because it is absolutist — impractically, incorrigibly so — about democracy, access and freedom. We support openness and participation even when it's impractical, even when it's counterproductive. This is the difference between a society based on principle and one based on utility. Not to mention the difference between us and the French.

Maybe the greatest benefit of airing the SCOTUS show is an illusory one: It'll simply make us feel more enfranchised, informed and empowered than we are. But that doesn't mean it's not important, above all at a time when half the country is on the verge of feeling electorally swindled. There's a strong argument for broadcasting Supreme Court proceedings because we can, as an unambiguous, if symbolic, statement of who works for whom here. To paraphrase Ronald Reagan, we paid for those robes.

If not, at least Mr. Sorkin should keep them in mind when he starts thinking spin-off. Chances are, a couple potential consulting producers will be retiring as soon as we sort out the next president. And I'll bet NBC pays a good bit better than the federal government.