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W, Web and Computer Access.

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 08 August 2020

Web and Computer Access.

The Supreme Court has been extremely cautious in its use of information technology and it has been slow to adapt its public presence to a rapidly changing technological medium. The Court installed its first copy machine in 1969, a full decade after photocopy technology entered the office mainstream. Today, it relies on automated systems to support routine business processes such as payroll and office management. The Court created an institutional website in 2000, five years behind most government agencies. And despite its presence on the World Wide Web, the Court remains reluctant to embrace information technologies that most people and firms today take for granted.

The Court’s website (www.supremecourtus.gov) is administered by the Government Printing Office. The site provides access to: detailed docketing information, updated every twenty-four hours; access to slip opinions and bound volumes of the United States Reports (beginning with volume 502 for the 1991 term); briefs on the merits through an arrangement with the American Bar Association (beginning with the 2003 term); calendars, schedules, bar admissions, visitors’ guides, and general information; and copies of oral argument transcripts (beginning with the 2000 term). With the exception of the docket information, most documents on the website are in Portable Document Format (abbreviated by the extension pdf). This file format captures all the elements of a printed document as an electronic image that can be viewed, navigated, printed, (p. 1078) or forwarded to someone else. The format limits searching and hyperlinking among documents, a decided limitation when it comes to legal research. Despite these limitations, the site attracts about seventy thousand users a day.

Beginning on 3 October 1955, the Court has recorded its public proceedings on a reel-to-reel taping system (see tape recordings). The Marshal’s Office deposits the tapes each fall with the National Archives and Records Administration in College Park, Maryland. Use of the tapes required a signed agreement limited to educational, research and noncommercial purposes. The Court removed all impediments to use of the tapes in 1993, after a political scientist publicly challenged the policy. The Court threatened civil action but backed down in the face of strong negative publicity and little ability to muster arguments against access to its public proceedings.

In 1995, Web access to the Court’s arguments began through the OYEZ Project (www.oyez.org). Today, nearly 2,500 hours of oral arguments and oral announcements of opinions in selected cases can be accessed from this site. Many of the arguments and opinion announcements can be downloaded as MP3 files under generous licensing terms. When the project completes its work in 2008, all Supreme Court audio held in the National Archives will be accessible, searchable, and downloadable from the OYEZ website.

Despite the enormous changes in recording technology, the Court continues to rely on the same recording systems it installed fifty years ago. One reason for this constancy is the need to preserve audio sessions in a format that is reliable and long lasting. Analog taping systems meet this archival standard. The Court has recently begun to experiment with digital recording backups, in part because of suboptimal results from its aging recording environment.

The Court provides only partial access to its bound opinions and in a format this is not useful for search and retrieval. Other websites have filled the gap. FindLaw (www.findlaw.com/casecode/supreme.html) offers free access and full searching of its collection of all Court opinions since 1893. Historic opinions that precede 1893 can be found at Cornell Law School’s Legal Information Institute website (http://supct.law.cornell.edu/supct/cases/historic.htm).

The clamor for public access to Court proceedings led to a remarkable change in its policy for same-day release of oral arguments. In the cases involving the 2000 presidential election (Bush v. Palm Beach County Canvassing Board and *Bush v. Gore), the Court released audiotapes to the press immediately following the conclusion of the arguments. This exception for same-day release was repeated in the 2002 term in the affirmative action (Gratz v. Bollinger, *Grutter v. Bollinger) and in the campaign finance cases (*McConnell v. Federal Election Commission). The exceptions continued in the 2003 term with the same-day release of arguments in four more cases. The main resistance to whole-sale release is the absence of a limiting principle that will avoid cameras in the courtroom. There are no technical impediments to air audio in real-time from the courtroom. The next step—real-time video from the courtroom—is the one most forcefully resisted by a majority of the current justices. It is therefore likely that the Court will continue to preserve its policy of delayed audio release as long as justices object to video in the courtroom.

Standard information technologies that most people take for granted in 2004, such as e-mail and Internet access, have only recently become available to the justices and their staffs. As late as 2002, Internet access in the Supreme Court building was only available in a few discrete locations. Today, however, the justices and their law clerks have access to e-mail, the World Wide Web, as well as to legal research databases such as *LEXIS and *WESTLAW. Security concerns explain this go-slow approach. Today, justices can work away from the Court, relying on VPN (virtual private network) to satisfy security issues.

While it is safe to say that all law clerks have access to and use these technologies, not every justice does so. Some justices remain old-fashioned in their ways (members of the so-called lead pencil club) while others have acquired computer skills from their young employees.

Electronic submission of briefs has not yet been implemented. The Court permitted such submission in only one case, Bush v. Gore in 2000, followed by hard-copy documents. The explanations are practical and prudential. As a practical matter, the Supreme Court has the luxury of being the last one to act. Typically, the Court will wait for the *lower federal courts to work out the kinks in new information technologies and then rely on that knowledge and experience. As a matter of prudence, electronic submission will lower the cost of appealing (by eliminating printing and delivery charges) and perhaps encourage more appeals.

While it is possible to communicate to the Clerk’s Office and to the Public Information Office by e-mail, neither the justices nor their law clerks have published e-mail addresses. The Court still holds strong to traditions that have set it apart from other branches of government. The courtroom even retains relics from an earlier age in the form of spittoons and quill pens. And the institution still relies on the now-quaint use of telephone operators who remain on call twenty-four hours a day. It should not come as a surprise that the (p. 1079) Court has taken a go-slow approach with its efforts to share information and communicate with the public. When it comes to information technology, the Court would rather follow than lead.

United States House of Representatives, Committee on Appropriations, Subcommittee of the Departments of Commerce, Justice and State, the Judiciary, and Related Agencies (FY 2003). “Listening in on the High Court,” Washington Post, 19 August 2003, Editorial, p. A18. Roy M. Mersky and H. Kumar Percy, “The Supreme Court Enters the Internet Age: The Court and Technology,” Texas Bar Journal 63 (2000): 569.

Jerry Goldman