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Supreme Court Justices Use Email After All! Well, Sort Of.

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By Casey C. Sullivan, Esq. on July 12, 2016 2:05 PM

No one will ever accuse the Supreme Court of being too quick to embrace new technology. The Court didn't start post oral argument recordings on its website until 2010 and its online slip opinions only go back to 2009. Just six years ago, Justice Kennedy and the late Justice Scalia let it slip during arguments that they didn't really know how text messages worked -- at all. And when it comes to one of the most ubiquitous forms of technology this side of electricity, the Court isn't really caught up, either. In 2013, Justice Kagan said that the Court hadn't "gotten to" email just yet.

But, it turns out, the Supreme Court justices do use email after all. Well, two of them do, that is.

Almost Not Luddites

The Supreme Court may still use wood burning stoves to heat the justices' chambers, but at least some of the justices are modernizing their practice with email.

Both Justice Kagan and Justice Sotomayor make use of email and both send out their electronic missives from a .gov account. That could set them apart from their colleagues, who still have written memos shuffled back and forth by their aides. (The carrier pigeons were retired, we assume.)

So at least two Supreme Court justices are au courant with email -- and it only took a federal lawsuit to find out. Jason Leopold, a journalist with Vice and self-described "FOIA terrorist," filed a Freedom of Information Act lawsuit back in January, seeking to access communications between the justices and the Solicitor General. The result, Leopold writes, was "a couple of innocuous emails" Justices Kagan and Sotomayor exchanged with the S.G. in 2010 and 2013.

Ex-Parte Portrait Hanging

When we covered Leopold's suit in January, we noted that "it could expose potential ex parte communication between the justices and the S.G., if any email communication exists." While the Supreme Court is exempt from FOIA, like all federal courts, the Department of Justice is not.

The Solicitor General's office has long maintained close connections to the Supreme Court, as Leopold's suit highlighted. (Justice Kagan, of course, was once Solicitor General, and many S.G.'s remain as prominent members of the Supreme Court bar even after they leave the DOJ.) But little is known about what communication, if any, the Supreme Court and the Solicitor General's office engage in -- until now.

So, what did Leopold's FOIA request reveal? Three pretty standard emails. In November of 2013, Solicitor General Donald Verrilli sent a three-sentence email to Justice Sotomayor, in response to questions about law clerk applicants. In 2010, former S.G. Neal Katyal emailed Justice Kagan, whom he had replaced when she left for the Supreme Court. He wanted to know where to hang her portrait:

I have a question: I'm going to hang your portrait tomorrow in our conference room, and I was wondering if you have a particular preference on layout. I was thinking of the three senior on top, and then you in a separate, lower, row with Justice Marshall (so 3, and then 2.) But I wanted to see if you thought that ok.

Whatever decorating tips Justice Kagan responded with were redacted, but Katyal seems to have followed her advice. "We'll get it hung," he promises.

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