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2014 Fed. Judiciary Report: E-Filings, but Still No Cameras at SCOTUS

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By Mark Wilson, Esq. on January 07, 2015 10:07 AM

"Pneumatics!" begins Chief Justice Roberts' annual year-end report on the federal judiciary. In 1893, The Washington Post heralded the pneumatic tube as a brilliant way to move documents around a large building.

When the Supreme Court building was constructed in 1931, Cass Gilbert incorporated pneumatic tubes in order to distribute information to the press. The lesson, buried at the end of this historical journey: It took 38 years for the Court to embrace this new technology.

We Hear You

In other words, "message received." The theme of Roberts' annual report was responding to criticism that the Court is tardy when it comes to embracing technology. Roberts let everyone know that, yes, he realizes the Court lags behind, but emphasized that courts proceed "cautiously." So what's in store for the future?

Roberts envisions not only a more user-friendly CM/ECF for the future, but an electronic filing system just for the Supreme Court. Like PACER, the filing system will contain all the public documents on a case. Currently, third parties like the ABA or SCOTUSblog publish briefs, and then, only in cases of notoriety (cert. petitions in cases that ultimately aren't granted cert. are almost never seen online). The system may be operational "as soon as" 2016.

So why is the Court loath to adopt new technology? Roberts goes on the defensive and offers a couple of reasons unrelated to the "they're old fogies" explanations that the media seem to hint at. First, Roberts reminds us that the federal judiciary is a branch of the U.S. government, and as such, is subject to the federal procurement process.

Second, there's the need to make sure that everyone has access to whatever case filing system the judiciary implements. Never mind, however, that PACER charges for "transactions" that occur wholly online, like displaying a search result, which don't use any consumable resources. That's not exactly open access.

Third, said Roberts, the Court is concerned about security and privacy. Again, however, PACER deals with that already; lawyers must redact any personal information, including Social Security numbers, of litigants. And documents filed under seal aren't viewable by the public.

Missing from this discussion of technology is, as others have noted, any mention of video recording in the courtroom. The Ninth Circuit Court of Appeals records every oral argument and makes it available online, and there is a startling lack of the kind of "playing to the cameras" that critics of cameras fear. (Although, in recent years, the justices have made clear they don't have any rational argument against cameras; their argument amounts to "we don't know what the results would be.")

A Slight Increase in Federal Cases

Attached as an appendix were the federal courts' 2014 statistics, which revealed a 4 percent increase in civil cases and an 11 percent increase in filings from criminal defendants. The Supreme Court saw almost a 2 percent decrease in filings, from 7,509 to 7,376. Of those, the Court heard arguments in 79 cases and issued per curiam opinions in six cases that weren't argued.

Not a bad year for the courts, and remember, "we're working on it."

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