Next to the ball drop in Times Square, the most exciting moment of New Year’s Eve is when the chief justice releases his year-end report on the state of the federal judiciary, letting the country know what’s happening in the federal court system and what sorts of things chief justices worry about instead of going to New Year’s Eve parties like regular people. This year’s report showcases John Roberts’ engaging writing style, his keen sense of his own role as steward of a court that is often criticized for being out of step, and his ability to have fun with history. He does all this by launching his report with the reminder that, once upon a time, the cutting edge in modern information technology was none other than the pneumatic tube:
On November 10, 1893, the Washington Post identified an emerging technology that was reshaping American society: Pneumatics! The miracle of compressed air had led to the creation of new contraptions, including pneumatic tube systems that relied on air compressors to transport cylindrical containers hundreds of feet within buildings. Pneumatic tube systems had found favor in banks and department stores, enabling clerks to transmit documents rapidly from one office to another. Noting this and other applications of pneumatics, the Washington Post lightheartedly proclaimed, “The present era is likely to be known to history as the pneumatic age.”
As the chief goes on to observe in his report, the Supreme Court was unimpressed. It waited almost 40 years, until 1931, to even propose installing pneumatic tubes at the high court for the benefit of the press. The “hand down” protocol, put into practice in 1935, allowed journalists sitting in the courtroom when decisions were announced to dispatch copies of those opinions, pneumatically, to their colleagues downstairs in the pressroom. And somewhere that year, George Jetson would earn his jetpack-wings, if George Jetson had been invented yet. Roberts’ whimsical foray into communications history ends with the observation that the court was both late to the magic of pneumatic time travel and also wedded to it for decades after it had become obsolete, quoting John P. MacKenzie, the Supreme Court reporter for the Washington Post, in 1968 describing the court’s process of transmitting decisions as “perhaps the most primitive … in the entire communications industry.” Three years later, Chief Justice Warren Burger ordered the pneumatic tube system dismantled.
The point, as Roberts goes on to note, is that the highest court in the land is notoriously slow to embrace new communications technologies and that when such technologies finally are embraced, courts must “understandably focus on those innovations that, first and foremost, advance their primary goal of fairly and efficiently adjudicating cases through the application of law.” And because of the nature of the institution itself, this all means that “the courts will often choose to be late to the harvest of American ingenuity” and that “the courts will always be prudent whenever it comes to embracing the ‘next big thing.’ ”
The current next big thing: electronic case filing. Roberts explains that while other federal courts have already taken the leap, by 2016 “all filings at the Court—petitions and responses to petitions, merits briefs, and all other types of motions and applications—will be available to the legal community and the public without cost on the Court’s website.”
The response to this announcement has been pretty much as one would expect: widespread delight that the court is joining the 20th century, mingled with frustration at all the ways in which it declines to join the 21st. Pretty much like the pneumatic tubes story. Other ways the court has declined to join the current (or even previous) century include a blanket refusal to allow cameras into the court for oral arguments and on decision days; a delay in releasing audio recordings; prohibiting any still photographs of court sessions; and declining to implement many other tweaks to the court’s procedures that would lead to greater access and transparency for a public that wants to understand the doings of the highest court of the land at a time when it’s deciding everything from reproductive freedom and campaign finance to marriage equality and the future of the Affordable Care Act.
The chief justice carefully lays out some valid worries about even this modest increase in technology use. His principal fear seems to be hackers, which in light of the recent Sony hack is hardly a trivial concern. As he puts it, “Courts understandably proceed cautiously in introducing new information technology systems until they have fairly considered how to keep the information contained therein secure from foreign and domestic hackers, whose motives may range from fishing for secrets to discrediting the government or impairing court operations.”
He is also worried about shutting the door on paper filings for litigants, presumably the many prisoners, who can’t afford electronic filing: “Unlike commercial enterprises, the courts cannot decide to serve only the most technically-capable or well-equipped segments of the public,” Roberts writes. “Indeed, the courts must remain open for those who do not have access to personal computers and need to file in paper, rather than electronic, form.”
The chief justice is no doubt correct in saying that embracing new technology carries all sorts of new perils, but in a thoughtful take, the (unrelated-I-assume) Jeff John Roberts, writing for Yahoo Finance, argues that in light of the fact that the court is expected to rule on cutting-edge technology and communications matters (and in light of the fact that the court did such a deft job of understanding the implications of such decisions in the Jones cellphone search case last spring), it makes little sense for Roberts to assert that reflexively avoiding wacky new technology is a per se judicial virtue. As he puts it: “Many of the most pressing legal and social issues we face today revolve around technology: NSA data-plundering, Facebook privacy policies, and borderless cloud computing are just some examples of how technology looms even larger today than it has in previous eras. And judges are the ones who have to sort out what the rules should be—rules that will be much better if the people making them are familiar with the tech they’re talking about.”
Yahoo’s Roberts is right. It’s slightly odd to suggest that the court is as deliberately cautious with all forms of new technology as it was with pneumatic tubery in the late 19th century. After all, the court didn’t wait 40 years to embrace telephones or word processing or email. In a strange way, pneumatic tubes—a mechanism for those inside the court to communicate principally with others inside the court—makes for an upside-down comparison when one is debating transparency and public access to the justice system. I’m the very last guy to complain about any system whereby the court makes it easier for journalists to communicate with other journalists (and therefore the public) especially on decision days. But installing pneumatic tubes that mainly connect the courtroom to the pressroom isn’t quite the same as opening the judicial branch itself up to members of the public who would like to know what happens inside the cloistered building, including basic information about petitions for cases to be argued and other matters of vital public concern. Whether the justices agree or not, most of the arguments advanced by Chief Justice Roberts for electronic filing are as applicable to allowing television cameras into a court that seats 70 members of the public, or providing instant access to audio recordings. And in a court that only made same-day transcripts of oral arguments available in 2006 and first allowed note-taking by public spectators just a few years before that, it’s difficult to escape the conclusion that some of the lofty firewalls erected between the public and the court have less to do with the dangers of modern technology, than with secrecy for its own sake.
It is a good and welcome advance that the court will now embrace electronic filing as other federal courts have done for years now and that it will be open in a way that will benefit the public for years to come. But the story of the pneumatic tubes that were new to the court long after they were old, and that were in use at the court long after they were obsolete, is as much a story of willful isolation from the public as it is about ignoring faddish media trends.
Sometimes the only way to know the difference between those two things is in the rearview mirror. But neither the Internet nor television cameras are readily dismissed as “the next big thing.” They are how we live our lives, and indeed how most of the justices live their own lives off the bench. The chief justice has made terrific strides toward embracing transparency since he joined the court. The advent of electronic filing is a good start, but there is a long way to go, and waiting 40 years for real public access to the highest court in the land cannot be the enduring moral of the pneumatic tubes story, when it sounds a lot more like the punch line.