Features - The Supreme Court Enters the Internet Age: The Court and TechnologyBy Roy M. Mersky and Kumar Percy, Published on June 1, 2000
Roy M. Mersky holds the William Stamps Farish Professorship in Law at the University of Texas law school faculty and has been the director of its law library since 1965. He received his B.S. in 1948, a J.D. in 1952, and a Masters Degree in Library Science in 1953 from the University of Wisconsin-Madison. Professor Mersky teaches Legal Research and Writing and publishes and lectures in the areas of legal research and writing, legal history, with an emphasis on the U.S. Supreme Court, library architecture and automation, and library science. Active in the ABA, the State Bars of Texas and Wisconsin, he is a Fellow of the American Bar Foundation, the Texas Bar Foundation, and the College of Law Practice Management, a member of the American Law Institute, and a consultant to legal publishers and information providers. He has been admitted to practice before the State Bars of Wisconsin, Texas, and New York, the 5th Circuit, and the Supreme Court of the United States.
Kumar Percy is the Media and Reserve Librarian at the Jamail Center for Legal Research, Tarlton Law Library, The University of Texas at Austin School of Law. Mr. Percy received both his B.S. and J.D. with honors from Tulane Law School, New Orleans, and his M.L.I.S. at San Jose State University. He practiced Admiralty Law in San Francisco and is a member of the California Bar. He was the Electronic Services Librarian and Research and Writing Instructor at Boston University School of Law prior to joining the professional staff at the Jamail Center in November 1998.
The Supreme Court recently took a major step into the electronic era by unveiling its first web site on April 17, 2000. The web site (found at http://www.supremecourtus.gov) gives the public access to the opinions and the daily work of the Court by providing schedules, argument calendars, Court rules, visitors’ guides, and bar admission forms. The site was created with the help of the Government Printing Office and supplies much of its information through easy-to-read Adobe Acrobat files. By its very existence, the site indicates that at least some members of the Court want to make use of the Internet and current technology.
The Court has never been at the forefront of technology, and Court officials do not believe it should be. There is still no external e-mail in the Court, and it may be the only federal entity that has a person answer the telephone 24 hours a day rather than relying on a voicemail system. Until as recently as 1969, the Justices were still using carbon paper to send drafts to each other. Oral arguments are now tape-recorded, but that practice started in 1955, decades after the invention of sound recording, radio, and television.
The Justices themselves have been cautious about new technologies. Justice Thomas, one of the proponents of the web site, recently admitted that he might be a Luddite if not for the "force of time and the shame inflicted by my law clerks." In response, Justice Souter quipped, "I am shameless." Justice Kennedy has also noted that Souter is a "member of the lead pencil club" on the Court. Kennedy, on the other hand, is in the same camp as Thomas, at least when it comes to technology. Both have noted that each year’s new crop of clerks brings more computer skills into the Court. Kennedy stated that the Court purchases the new computer systems that the clerks need, "in part so that they are marketable when they leave, and in part so we can use their skills." In exchange, the clerks also teach the Justices who want to learn how to use computers.
Still, Thomas generally characterizes the Court as being in a "catch up mode in the area of technology." Within the last two years, the Justices have started to work away from the Court and use technology to gain access to legal information and working documents. Thomas works at home during the summers and uses encrypted and secure e-mail and telecommunications systems to log onto Lexis and Westlaw, as well as to download confidential documents.
Security has been the main reason that the Court was reluctant to create a web site. The Court does not want to leave its opinions open to hackers who could rewrite them or otherwise alter its work. But the Court has been cautiously entering the digital age for years. In 1992 the Court made its opinions electronically accessible through the HERMES Bulletin Board System (BBS), at first available only through subscription. Three years later it established its own BBS with slip opinions and other items that are now available on its web site. The dial-up system is cumbersome, but it still gives the public immediate access to opinions.
Access to Supreme Court Opinions Through Commercial Services, the Web and Audio Recordings
Although the Court only recently created its Internet presence, it has been well represented through commercial and nonprofit groups for years. In the commercial realm, Westlaw and Lexis both have the full text of opinions within minutes of release. They also hold the briefs submitted to the Court and transcripts of oral arguments.
There are also free sources of Court information on the Web. The Supreme Court Collection at Cornell’s Legal Information Institute(http://supct.law.cornell.edu/supct/) provides links to all slip opinions released since 1990, Court calendars, oral argument schedules, and other Court information. This is primarily a free interface based on the Hermes databases, but the site offers enhanced search tools including party name tables and a search engine. Another resource is the Supreme Court Center section of the FindLaw web site (http://supreme.findlaw.com/Supreme_Court/resources.html). Findlaw provides the docket information and opinions of the Court, and also features the briefs submitted to the Supreme Court since the 1999 Term, including amicus briefs.
Aside from the new web site, the Court has been slowly allowing the public into the Courtroom through access to audio recordings. Since 1955 the Court has deposited with the National Archives a recording of the oral arguments of each case. The recordings are released at the end of each Term. After CBS television aired part of the arguments about the Pentagon Papers case in 1971, Chief Justice Burger reportedly stopped the transfer of the tapes to the National Archives. In 1986 the other members of the Court reinstated the tradition, but only with the provision that those who wanted to listen to the tapes must first obtain permission from the Court and promise in writing to use them solely for educational and non-commercial purposes.
The tapes became open to the public only after Peter Irons, a political science professor at U.C. San Diego, and Stephanie Guitton violated the agreement. Using the recordings of 23 key Supreme Court cases, they created May It Please the Court, a collection of edited transcripts and audiocassettes of the arguments. After talk of a civil action against the authors had died down, the Court decided to allow the National Archives to sell the tapes without restriction. Another major effort is the Oyez Project from Northwestern University (http://oyez.nwu.edu/). This website makes hundreds of hours of oral arguments available in Real Player format. The arguments are unedited and can be heard for free on the Internet. One of the key advantages of listening to the tapes is that it is possible to identify which Justices are speaking. The official transcripts do not designate who asks which questions. However, those who recognize the Justices’ voices can identify them by listening to the arguments. The process is even more refined in the Oyez Project’s CD-ROM titled The Supreme Court’s Greatest Hits. Along with the audio files for 50 leading Supreme Court cases, the CD-ROM includes sound clips from each of the Justices to help identify the speakers.
While the Court is providing audio access to arguments at the end of each Term, it shows almost no indication of increasing the role of audio-visual technology in the Courtroom. The Justices have uniformly opposed capturing the Court’s proceedings on videotape, ignoring all calls, even from Philip Anderson while he was ABA President. Justice Souter is on record that a camera will only enter the Supreme Court if "it is going to roll over my dead body." Souter previously served on the New Hampshire Supreme Court where cameras are allowed. He and other members of the Court believe that when appellate judges are being videotaped they are hesitant to ask questions that could be manipulated into provocative but misleading 15-second sound bites. That hesitation could undermine the oral argument process. Because of this same fear, the Court refuses to provide live audio feeds of oral arguments and, instead, provides them in one collection at the end of the Term.
Recently, however, the Court did take one small step toward live broadcasts. Since 1998 the Court has broadcast the announcements of opinions. The proceedings are piped into the Court’s Public Information Office downstairs. During the announcements, the doors are closed so that no one outside the room can hear. As a result, only the members of the Court’s press corps can hear, and they are forbidden from making sound recordings. Oral arguments are still not included as part of these audio feeds. While this is a small exception, it still gives the public live access to the Court through the press. The press now can obtain a better understanding of the individual Justices’ views, as the Justices may reveal personal feelings while summarizing from the Bench. This was particularly true during the last day of the 1999 Term, when several of the Justices read their dissenting opinions from the bench, dramatizing the ideological divide of the Court in terms of states’ rights.
By maintaining a web site the court may be able to rebut the critics who believe that all appeals level courts are ill equipped to answer high-tech questions. In the December 1999 issue of the Texas Law Review, Professor Stuart Benjamin (of the University of San Diego) described the difficulties that evolving technologies pose for appellate courts. Courts must rely upon trial-level fact-finding that was finished years before the finaljudgment. During the interim the technological changes may make some of the trial-court's findings, or even the entire case, moot. Professor Benjamin used the Microsoft antitrust case as an example. A key fact decided during the trial was that browsers and operating systems are separate programs. By the time that the appeals process has run its course, operating systems may be entirely different, effectively negating that issue. The Court's recent willingness to increase its use of technology might signal that it will be better prepared for these kinds of problems in the future.
Although the Court has been reluctant to embrace new technologies, there is every indication that, after careful inquiry, the Justices are now moving the Supreme Court into the 21st century.