The Supreme Court Is Stubbornly Analog By Design
fivethirtyeight.com
fivethirtyeight.com
I was an early employee of Aereo (the case mentioned in the article where Breyer went on about phonograph record stores), and I worked there when we were sued and ultimately won the appeal in the 2nd circuit, when we won in 1st circuit, when SCOTUS granted cert, and ultimately when we lost.
One of the strangest parts is that you have no idea when they'll issue your decision. They give a certain amount of advance notice that they'll be issuing decisions on certain days, but you don't actually know which decisions.
For a couple months after oral arguments, we had probably half a dozen mornings on pins and needles while we'd wait to find out if they're going to decide our case. It was really, really hard to concentrate on getting anything done.
Another fun fact: Clarence Thomas has only asked 1 question during oral arguments in something like 10 years.
Edit: some info presented further down
Speaking for myself, I think it does make
a difference: In a significant minority of
the cases in which I have heard oral
argument, I have left the bench feeling
differently about a case than I did when
I came on the bench. The change is seldom
a full one-hundred-and-eighty-degree swing,
and I find that it is most likely to occur
in cases involving areas of law with which
I am least familiar.
-- Rehnquist, William H.. The Supreme Court
(Kindle Locations 4154-4157).[1]
[1] I found that citation elsewhere and bought the Kindle book for the actual text. The original citation I found cited to page 243 of the print edition.
Breyer asked:
> If we take the public performance, maybe we run into what Professor Nimmer saw as a problem. Why isn't what used to be called a phonograph record store that sells phonograph records to 10,000 customers giving a public performance?
The bit about "phonograph record stores" is actually referencing a hypothetical posed by Prof. Nimmer in a 1982 textbook, which addressed the 1976 Copyright Act amendments at issue in the Aereo case. That hypothetical came up in an amicus brief to the court: https://www.americanbar.org/content/dam/aba/publications/sup... (at 7-8).
Breyer is talking about phonographs because that hypothetical references phonographs (and everyone is trying to understand what Congress meant in 1976). Note that a few pages later, Justice Sotomayor asks the attorney to extend the hypothetical to Dropbox and iCloud.
For context: Justice Thomas has explained that's because, based on his experience as a lawyer prior to being a judge, he always found it irritating when a judge would interrupt the lawyer, interfering with their ability to present their arguments in a linear fashion.
The oral arguments are also a lot less significant than people think. When justices ask questions, they're used more for signaling than anything else, because they're already briefed on the case beforehand.
They're not, and as pointed out below, even Rehnquist stated as much.
For SCOTUS, oral arguments are a formality. That doesn't mean they're not valuable, but their value comes from formalizing the arguments for thr record, because by that point, most of the interrogation (both literal and figurative) of the arguments has already been done.
A bunch of us started a new company called Starry after the Aereo decision, and we're still doing some crazy RF stuff (although this time around, it's as a WISP rather than TV).
The US Courts uses kubernetes/ open shift, etc..
Analog isn’t the right word. It’s personal preference and work flow.
There are systems in place scotus could use. SCOTUS are very aware of technology and how it works. That is their job to understand.
Still, it's a massive leap forward over the Superior Court's fragmented system. And kudos to you guys for keeping CM/ECF up and available. It's a very robust system.
a. for the blind with screen readers
b. for those with javascript disabled
c. for text browsers like lynx and links
d. for fetchers like wget and curl
e. for people with cookies disabled
f. for OSes including Ubuntu, Android, etc.
g. for browsers including Firefox, Chromium, Edge, Safari, etc.
h. for dial-up and satellite connections
i. for people with older computers, like a Pentium III
Actually try it. Make sure it is practically usable, not just theoretically possible to use.
Not an auspicious beginning to start this off wrong. The opposition to cameras has nothing to do with the Justices being "technophobic" (after all, video cameras have been common place throughout the Justices adult lives). It's about the possibility of oral arguments becoming part of the 24/7 soundbite news cycle.
As to the website, the slow adoption of electronic filing has been driven more by the fact that it creates a duplicate set of procedures. You still need a paper system, so that e.g. prisoners can file cert petitions on paper. So you have to add the electronic system on top of that.
As to the article's substantive points, I think the premise that the "Supreme Court justices lack an understanding of what technology means" is incorrect. For example, Riley v. California, published four years ago, recognized that cell phone searches could result in searches of materials not on the cell phone--such as photos stored on the cloud. Going back a lot further, it's hard to read Justice Stevens' 1997 opinion in Reno v. ACLU (which struck down most of the Communications Decency Act), and conclude that he didn't understand the salient aspects of how the Internet works: https://www.aclu.org/legal-document/supreme-court-decision-r....
The whole analysis of Olmdstead and Smith v. Maryland is also confused:
> Nearly 40 years later, in 1967, seven Supreme Court justices echoed Brandeis’s thinking in a decision that overturned the ruling in the Olmstead case. But in the intervening years, Taft’s interpretation was the law of the land, which meant that wiretapping without a warrant was legal.
The Olmdstead case was not based on the Justices failing to understand the implications of phone technology: by 1928 a third of Americans had phones in their households, and Justice Taft who wrote the majority opinion had grown up with telegrams and used telephones for most of his adult life. The difference between Olmdstead and Smith v. Maryland was intervening decades of liberal 4th amendment precedent that expanded it far beyond its plain text.[1]
Likewise with Scalia and Jones (the GPS case). The 4th amendment is not a general "privacy" protection. It doesn't use that word or anything like it. It addresses "searches and seizures." Lots of people want to read it broadly to prohibit government tracking, but even those people have to admit that you have to do a bit of clever lawyering to argue that e.g. taking pictures of license plates is a "search" or "seizure" of "persons, houses, papers, [or] effects." In Jones, Scalia focused on attachment of a GPS device to the defendant's car, because physical trespass onto the defendant's private property (i.e., his effects) was an easy basis for finding the existence of an illegal search. That provided a basis for deciding that case that didn't requiring buying into broader theories of the fourth amendment.[2]
[1] I personally think Olmstead was right and Smith v. Maryland was wrongly decided. Under modern 4th amendment jurisprudence, something is protected under the 4th amendment if you have a "reasonable expectation of privacy" in that thing. In 1928, your phone calls were transmitted in the clear on the wires; anyone at the phone company could listen to your calls. It was objectively unreasonable to consider phone calls private.
[2] http://lawandlibertyblog.com/nyujll/2014/6/3/how-long-is-too... ("Proponents of the mosaic theory argue that at some point enough individual data collections, compiled and analyzed together, become a Fourth Amendment search.").
Sometimes they get things right, as I feel they did in Kyllo. Sometimes they get things wrong, as I feel they did in Grokster. But more often than not, I can read both the majority and minority opinions, and see that both sides are arguing from rational positions based on sound legal theory and precedent.
Of course judicial philosophy can tilt which way a justice finds, but again, most of the time it's well supported, and I think where most people see "technophobia" amongst the justices, they should see lawyers doing a poor job of making their cases plain.
True, but the Supreme Court's byzantine rules around paper sizes, font sizes, binding, and colored covers makes filing a Supreme Court case daunting. Perhaps that's by design. They could, like any other court that allows e-filing, allow standard printed copies of the filing, instead of requiring 6⅛" by 9¼" paper and binding.
The camera thing is always my barometer of when a criticism of our judicial system's tech problems is going to be worthwhile.
I've only followed a few SCOTUS cases with any close attention, but it only took reading ONE oral argument transcript followed by seeing the news to understand why they shouldn't allow cameras.
The news' coverage was downright atrocious; the only possible explanation outside actual malicious intent to mislead the audience is if they didn't read any of the memoranda or attempt to understand the case. I don't trust those people with video of oral argument.
They should just give prisoners access to computers. They might actually learn some useful skills which would reduce recidivism.
I understand there are concerns that prisoners could communicate with the outside world and start harassing people, ordering drugs or murders, plotting escape, etc. But surely a sufficiently locked down system could allow inmates to use computers but prevent unsupervised communication with the outside world? Maybe limit their web access to a curated selection of educational websites? Some kind of filtering proxy could block commenting, etc.
The last thing we need are out of context soundbites on the evening partisan talk show further polarizing the court.