How Many Ways Does SCOTUS Fail Technology and Transparency?

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By William Peacock, Esq. on October 28, 2013 3:55 PM

Calls for cameras in the Supreme Court have been repeated ad nauseum over the years. And we laughed when Justice Elena Kagan addressed the issue of email earlier this year, noting that her fellow justices aren't exactly tech-savvy, and that they send memorandums back-and-forth on ivory paper.

If the court's 19th century procedures make them sound like inaccessible luddites, well, we wouldn't exactly disagree with you, nor might the Reporters Committee for Freedom of the Press, which held a panel highlighting the Supreme Court's transparency shortcomings.

The Failings

How do they fail? The Washington Post's Robert Barnes, in recapping the panel, counts a few ways:

  • Though some courts live-stream or video feeds of oral arguments, SCOTUS provides audio only, at the end of the week. (Same-day transcripts are available, and in at least one case, the oral arguments were released same-day.)
  • Audio recordings of bench readings aren't released until the next term, which is quite the shame, considering justices usually make such readings when there is vehement dissent in landmark cases.
  • Financial disclosures are only provided upon request from the Administrative Office of the U.S. Courts, "on paper, for a fee, and only after the justices have been told who's asking for them," though they after often leaked to the Internet relatively quickly.
  • Petitions and amicus briefs are not available online, except through third-party sites, like SCOTUSblog.

And of course, there's always the issue of link rot, where online sources cited by Court opinions disappear off of the Internet.

The Fixings

Obviously, we'd like to see cameras, or if baby steps are required, how about live-streaming audio for now, and video after Scalia retires? (That should alleviate the oft-cited concerns about grandstanding.) At a minimum, recordings need to be same-day, both for oral arguments and for bench readings.

The press (and "citizen journalist" bloggers) can't do their job when they have to wait days or even months for recordings, and relying upon third-parties for recaps of Court opinions, or for leaks of disclosure reports, means everyone outside of D.C. is playing the telephone game, and reporting less and less accurate information, often long after the news "breaks."

If the Court doesn't want to use email, that's fine -- we all know how insecure email is now, thanks to Edward Snowden and the NSA. Let them stick to private ivory-tinted memoranda.

But amicus briefs, as voices that may or may not influence the Court, need to be part of the online record. In addition to publishing the opinion online, the Court needs to have PDFs of all briefs, petitions, filings, and perhaps even preserved copies of online sources cited, just in case the links rot.

The Supreme Court is an honorable, co-equal third branch of our government. If we want children to grow up to understand the Court, if we want to inspire children to follow the footsteps of pioneers like Justices Thurgood Marshall, Sandra Day O'Connor, or Sonia Sotomayor, and if we want Americans to be able to name more than one or two justices, bringing the Court of its 19th century isolation would be a strong start.

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