By Kashmir Hill and David Lat
Sunday, October 4, 2009
Meet Supreme Court Justice Irene Waters. With her pursed lips and dark hair pulled back in a bun, she bears a passing resemblance to Justice Ruth Bader Ginsburg. In her jurisprudence, however, Waters may be more like Justice Sandra Day O'Connor, who cast the swing vote in many key cases before retiring in 2006. Waters is more animated than either of those two justices, and even more so than Justice Antonin Scalia.
But don't look for Waters when the nine robed ones emerge from behind the red velvet curtain tomorrow morning for the official start of the court's new term. She's a member of the fictional high court in "Supreme Decision," an online game designed to teach schoolchildren about the judicial branch. (We told you she was animated!)
O'Connor, the nation's first female justice, has a new job description this year: video game promoter. Frustrated by the fact that two-thirds of Americans are unable to name the three branches of government, among other lowlights of the state of civic knowledge, she is spearheading a project called Our Courts, which develops Web-based games aimed at teaching seventh- and eighth-graders about government. "One of the reasons we started a public education system was to create citizens who will participate in our government," O'Connor told us in an interview. She lamented the fact that the No Child Left Behind law has shifted schools' focus from inculcating civic values to jacking up math test scores.
Although not a gamer herself, O'Connor ran the numbers: Children spend roughly 40 hours a week in front of screens of some sort, including TVs, computers and cellphones. O'Connor wants to harness that screen time. As part of the lessons, she is throwing open the doors of the virtual courtroom. Her inside view may keep kids interested, but it does bring up an unfortunate irony: Access to the courts may be better in the game -- where, for example, players can watch and listen to a Supreme Court argument -- than in real life, where courtrooms remain inscrutable to the public in many ways.
O'Connor's scheme to teach kids about the courts might work if the games are actually fun. We too spend more than 40 hours a week in front of screens, reporting on the legal world for the blog Above the Law, and we previously spent time in courtrooms working for law firms. Having grown up on Nintendo and been educated by Carmen Sandiego -- and currently addicted to "Rock Band" -- we were happy to set aside our plastic guitars and give Our Courts a spin.
In the best of the two games, "Supreme Decision," a middle school student has sued his school for preventing him from wearing a T-shirt featuring his favorite band. You play a Supreme Court clerk, advising your boss, Justice Waters, on how to rule in this First Amendment case. O'Connor, an advocate for more diversity on the bench, incorporated some wish fulfillment into "Supreme Decision": Women outnumber men on a racially diverse virtual court. (O'Connor did not design the games -- outside companies did -- but when we asked about the composition of the virtual bench, she coyly admitted to having a hand in "details of that type.")
The other game, "Do I Have a Right?", is a primer on the Bill of Rights. Your role is less glamorous: You work at a pro bono law firm, essentially as a receptionist, introducing clients with civil rights cases to lawyers with expertise in the appropriate amendments. Consultation between the lawyers and the clients is simulated with a talk bubble reading "Yadda yadda," reinforcing the stereotype that law is boring and overly complicated.
One allure of video games is being able to do things we can't do in real life. Playing a law firm receptionist or a Supreme Court clerk, the prestige of the second job notwithstanding, probably won't hook middle-schoolers like "World of Warcraft" does. The simplistic animation and Web 1.0 interface might not appeal to kids raised on real-time 3D graphics and the virtual reality of the Xbox. "Fun" is relative, though. The Our Courts games are engaging enough for the classroom -- and probably better than a textbook at helping students understand judicial decision-making.
The Our Courts project highlights a broader challenge for civic education -- not just for kids, but for their parents. While appearing on "The Daily Show" in March to promote Our Courts, O'Connor noted that only a third of Americans can name the three branches of government, while 75 percent can name one "American Idol" judge. Jon Stewart responded: "We're going to need more than a Web site."
He's right. A Web site isn't going to do the trick. But it's not fair to cast blame solely on the ignorant, "Idol"-viewing masses. If Americans don't know enough about the judicial system, courts and judges themselves should take some of the responsibility.
Courts have tried to enhance their legitimacy by shrouding themselves in secrecy, a process that federal Judge Richard Posner has described as "professional mystification." Far from opening themselves up to the public, some courts actively oppose efforts to raise transparency in the judicial branch.
The most obvious example is the Supreme Court's refusal to allow its oral arguments to be televised. Opponents worry about the effect cameras might have on the judicial process. "You don't want grandstanding by lawyers. You don't know the effect on the judges themselves," O'Connor told us.
But isn't it worth at least giving cameras a try? More than 60 percent of Americans favor televised coverage of Supreme Court sessions. "Even if only one in a hundred of our fellow citizens were to watch, that would be 3 million of us who stand to be enlightened and enriched," former ABC News correspondent Tim O'Brien told the Legal Times.
Maybe the justices don't want to become as recognizable as Simon Cowell -- in light of recent security threats against judges, this is understandable -- but the court's refusal to release same-day audiotapes of arguments is indefensible. As George Washington University law professor Orin Kerr has noted: "Sound-only recordings generally don't raise the same [security] problems [as video]. . . . Oral arguments have been taped for decades and get released eventually, so why not release the audio on the day of the argument, when the public is most interested?"
It's not just the high court. Although the right to an open and public trial is guaranteed by the Constitution, lower-court judges have issued orders prohibiting blogging or Twittering about their proceedings. Several federal courts recently objected to a new add-on to the Firefox browser that would make it possible to access certain online judicial records -- generated by our taxpayer-funded judicial system -- without charge.
Increasing the openness of the judicial branch is a monumental undertaking. It's probably easier to get seventh-graders to play a video game about the Bill of Rights. That more modest project, educating kids about the courts, is off to a promising start.
O'Connor told us about Charlie, a sixth-grader she met in Upstate New York, whom she asked to play the Our Courts games and give her a critique. When Charlie saw her the next day, he reported that he loved the games and stayed up to play them until almost midnight, when his grandmother ordered him to bed. Charlie is now interested in becoming a lawyer.
"We're not trying to produce a new generation of lawyers; we have plenty already," she said. "But I was pleased by his response."