Since the dawn of the internet age, people have speculated about the possibility of a fully digitized government. Thinkers have imagined a plethora of digital solutions to government problems, and one of the major trends in governance during the first quarter of the 21st century has been the adoption of many such proposals. Whereas in the 1990s, one could hardly trust merchants selling goods over the internet, today, Americans can pay their taxes online. Governments across the world have websites with fully built-out applications in the cloud. It is pithy to say this, but clearly, change is afoot.
But until recently, the demands of at least three operations of a properly functioning democracy have prevented governments from transitioning to a fully digitized institutional infrastructure: voting, legislating, and adjudicating. These three functions have defied activists' efforts to digitize them for the simple reason that there is an enduring sense that these functions must be performed in person in order to maintain the transparency and legitimacy of the government.
For example, voting in person gives the electorate some modicum of confidence that their votes are being recorded and tallied fairly and removes barriers to participatory democracy such as low literacy rates. As a result, Americans have treated absentee votes as subordinate in value to votes cast in person during elections. Absentee votes are sometimes not counted at all and discarded, often for good reasons, such as if the margin of victory is higher than the number of absentee ballots received. And voting over the internet has remained an elusive target of speculators, again for good reasons: such operations would have potentially massive security risks.
Efforts to digitized legislation have had much more success. Legislators routinely make use of the internet to perform their duties, mostly in the form of communications. But until recently, legislators who wished to go on the record and participate in a debate over a bill had to appear in person. And similar to the absentee voting situation, legislators who wished to cast a vote had to appear on the floor of the chamber in which the vote was held in order to participate.
Judicial proceedings have perhaps been the most resistant to digitization. Courts have strict rules about who must appear in person to participate. In America, defendants have the right to appear before a judge and defend themselves. If defendants are not present, courts cannot proceed, in principle. Indeed, courts, by and large, require all parties to be present: the defendant, the prosecution, and the judge.
In the past, exceptions to the rules were rare. Legislative proceedings and elections have by and large remained in-person affairs, but not so for the judiciary. For example, Anwar Al Awlaki, the US citizen, and infamous Al Qaeda terrorist propagandist was sentenced to death in absentia. Justice Ruth Bader Ginsburg cast her votes on supreme court rulings from her hospital bed after a recent surgery. Defendants and witnesses can call in from remote locations. In this way, the judiciary seems most amenable to more thorough digitization.
But of course, extraordinary times call for extraordinary measures, and these are indeed extraordinary times. The coronavirus pandemic has forced governments to adopt new processes using the tools available, the most important of which has been live video chat applications. Elections can still be performed by submitting absentee voting, but Joe Biden is running his campaign from his basement via video conferencing software. Crucially, legislatures cannot meet in person as easily without putting society in general at risk. As a result, for the first time, many governments around the world have chosen to allow legislators to call in from home and perform debates remotely. The UK parliament has demonstrated the efficacy of this model for all democracies, allowing MPs to call into parliament and debate with each other in real-time, and so far the results have been spectacularly positive. In the US, Congress has so far been unable to agree to such common sense methods of legislation, but there is a growing consensus that similar forms of remote legislation are prudent and necessary.
This past Monday, however, the Supreme Court Of The United States (SCOTUS) held a fully digitized, live streaming conference call to hear a case, Burwell v. Hobby Lobby Stores. The motivation for making the stream publicly available was simple: transparency. The public has the right to sit in and listen to SCOTUS proceedings, though seats in the chamber are few and tickets are usually almost to secure since they are often given out as favors by politicians. Still, SCOTUS proceedings are public in principle, and, to maintain this standard of transparency, the stream was made public.
In many ways, the stream was a massive step forward for the cause of transparent governance. There was no video, just audio, and it was broadcast via C-SPAN. As each lawyer and judge spoke, their names and headshot appeared on the screen, along with information about the case. Some of the audio streams crackled. At one point, Justice Sotomayor did not immediately respond, causing a 10-second silence that is common in many conference calls. But overall, the entire proceeding went off without a hitch. For the first time in the history of the United States, the highest court in the land went fully digital.
Watching it in real time was not exactly a thrilling experience. Court cases are by and large snoozefests. The most unexpected development was that Justice Thomas, who is famous for remaining silent, asked a question for just the third time in a decade. This caused a fair bit of twittering through the legal community. In addition, the case has the potential to impact women’s reproductive rights in America, so people who have followed the drama surrounding Hobby Lobby’s refusal to cover contraception found the case riveting.
Otherwise, for the laymen, the show was as dry as one would imagine a court case to be. SCOTUS cases are usually highly choreographed affairs, it was fun to imagine the Justices in their bathrobes and pajamas, or running the world with no pants on. But otherwise, the substance of the proceeding was banal. It was exactly what Justice Antonin Scalia had warned it would be when he argued against live broadcasts before his death, saying that such proceedings are full of “all sorts of dull stuff that only a lawyer could understand and perhaps get interested in.”
Still, it was a defining moment in our era, however, due to the medium of communication. Justices have long argued over whether to allow cameras or live radio broadcasting technology into the courtroom. The SCOTUS is the highest court in America, so it sets the standard that all other courts follow. But its influence extends beyond U.S. borders. Indeed, all democracies look to the SCOTUS for guidance, if not directly, then by observing how the SCOTUS operates. Thus, the fact that the SCOTUS performed such an important case remotely sends a strong signal to the rest of the world that judicial proceedings can indeed occur in fully digitized spaces. Cyber Court is now a thing. The event proved by a demonstration that, out of the three branches of government, one branch, the judiciary, can be heavily digitized. Perhaps more courts will follow suit in the coming months as the feverish virus continues to burn across the planet.
