A New Year For Technology at the Supreme Court? Not a Chance

by Eric Segall

One of my New Year’s resolutions was to be less critical of the Supreme Court or, if that was too ambitious, at least take a deep breath and wait a few days before reacting to the Justices’ decisions. I knew that would take me out of the twenty-four hour news cycle but maybe that was a small price to pay for a bit more detachment. Amazingly, my resolve was tested before my first drink on New Year’s Eve.

One of the few administrative responsibilities of the Chief Justice of the United States Supreme Court is to issue a year-end report on the state of the federal judiciary. Although this summary may not be high on most people’s holiday reading list, it is important to those with a personal or professional interest in the federal courts. When is the report issued? At 6:00 p.m. on December 31. Talk about dodging the news cycle. But don’t think for one minute the Chief is busy writing on the last day of the year. The report is written sometime earlier and, according to its very text, “EMBARGOED until 6 p.m. E.S.T. December 31, 2014 (No wires, TV, radio, Internet, or other formats before 6 p.m. E.S.T.)”

One of the only times the Court as an institution talks directly to the press and the public is on New Year’s Eve. This practice is a wonderful metaphor for the Court’s complete lack of transparency across the range of its official duties. So before I respond to this year’s report, a bit of a summary.

Unlike the Supreme Courts of Canada and the United Kingdom, as well as a majority of our state supreme courts, our nation’s highest Court does not allow any video or streaming of its public oral arguments or decision days. The Court does not give any advance notice to the public, the press, or even the parties to the case when a particular decision will be issued. Although the Justices give public speeches routinely in their individual capacities, few allow such events to be shown on television or live streamed. Even the Justices’ individual votes whether or not to grant certiorari to the roughly 75 of 7500 appealed cases are secret unless one of them writes a dissent which is quite rare.

The Court’s lack of transparency across the board has not gone unnoticed. Several public interest organizations have sprung up recently devoted exclusively to the issue. The Chief Justice of the Ohio Supreme Court has written persuasively about the need for cameras in our highest Court to reach young people raised on social media and has also demolished in her words the “tired old arguments against allowing cameras in the courtroom.” Rather than repeat those arguments here it is enough to note the passion of a Justice of the Texas Supreme Court who tweets proudly about his court’s successful use of cameras to provide the public with better insight into the work of his court.

Is the Supreme Court moving in the right direction? Hardly. The Chief’s 2014 year-end report repeatedly emphasized how important it is for the Court to move slowly to embrace new technology. Why? He really didn’t say other than to quote the jurisdictional language of Article III of the Constitution (I don’t know why), and to hint that the Court is uniquely susceptible to security breaches (why, again he didn’t say).

As if to prove his point, the only mention of technological change the Chief even hinted at was the promise that by 2016 all of the Court’s briefs, decisions, and other public documents will be on-line. No mention of cameras, live steaming, more advance notice of decisions, or any other change. To put the Chief’s promise in context, the rest of the federal court system has for years used a comprehensive on-line system for all pleadings that houses over 500,000,000 documents. Hooray that the Supreme Court will join this club sometime in 2016.

Despite the increased public pressure applied by new interest groups, academics, and even other judges, the Chief did not discuss cameras or any other transparency issue in his year-end report instead devoting a full 25% of his summary to the history of Pneumatic Tubing.

There are even more issues. The Supreme Court reporters for the New York Times (Adam Liptak), the Washington Post (Robert Barnes), the LA Times (David Savage) and USA Today (Richard Wolf), are all excellent journalists of the highest integrity. They cover the Court comprehensively and accurately despite great obstacles. Unlike reporters who cover Congress or the President, they never get to ask questions directly to the public officials they are covering in an official press conference nor is there video they can use to double check their reporting. The Supreme Court of Canada actually gives its press advance notice of important decisions.

All four of these journalists also have to choose between being captive in the Courtroom during oral arguments/decision days with no way to report in real time what is happening (and thus being late to the social media game) or listening live in a press room outside the courtroom but missing the impact of seeing the action. Mr. Liptak has spoken publicly about that conflict.

One of the great ironies of the current press policies of the Supreme Court is that most people use a blog, SCOTUSBlog, to receive contemporaneous information about decisions even though the blog has no official press credential and is run by an attorney who often represents clients in front of the Court (no disrespect to its founder Tom Goldstein, an outstanding advocate who has put in place all imaginable ethical rules to guard against conflicts of interest between SCOTUSBlog and his clients). Nevertheless, citizens in Omaha or Little Rock shouldn’t have to rely on a privately run blog to receive current information about the decisions of the highest Court in the land. Those announcements should be televised for all to see (which would also solve the reporters’ inability to be in two places at the same time).

So, I have modest proposal. The country’s four major newspapers should unify on the issue of cameras in the Supreme Court. All four in the past have published op-eds urging cameras. Such a move would likely be covered by both cable and network news and would generate at least some pressure on the Supreme Court. Perhaps the op-eds could run the first Monday of every new term to drive home the point that our highest Court should not be uniquely walled off from the press and the public.

Anything less than television coverage of the Court’s already public oral arguments and decision announcements is just one large insult to the American people. Moreover, once cameras are allowed in, and the sky doesn’t fall, maybe other needed changes (such as advance notice of landmark decisions and live streaming) will soon follow.

No one ever said New Year’s resolutions were easy.