It's one thing to prefer analog process, it's another to be ignorant of technology while making decisions about it. The later is a major problem in the age when technology is increasingly pervasive in everyday life.
I was an early employee of Aereo (the case mentioned in the article where Breyer went on about phonograph record stores), and I worked there when we were sued and ultimately won the appeal in the 2nd circuit, when we won in 1st circuit, when SCOTUS granted cert, and ultimately when we lost.
One of the strangest parts is that you have no idea when they'll issue your decision. They give a certain amount of advance notice that they'll be issuing decisions on certain days, but you don't actually know which decisions.
For a couple months after oral arguments, we had probably half a dozen mornings on pins and needles while we'd wait to find out if they're going to decide our case. It was really, really hard to concentrate on getting anything done.
Another fun fact: Clarence Thomas has only asked 1 question during oral arguments in something like 10 years.
Maybe you're misremembering? This is what Chief Justice Rehnquist said,
Speaking for myself, I think it does make
a difference: In a significant minority of
the cases in which I have heard oral
argument, I have left the bench feeling
differently about a case than I did when
I came on the bench. The change is seldom
a full one-hundred-and-eighty-degree swing,
and I find that it is most likely to occur
in cases involving areas of law with which
I am least familiar.
-- Rehnquist, William H.. The Supreme Court
(Kindle Locations 4154-4157).[1]
Especially as politics and the law has become more partisan (ideologically if not according to party), of course oral argument will be less likely to change the ultimate judgment. But in a caselaw system as ours reasoning is nearly as important, and sometimes more important, than the particular judgment. Just look at the way the Federal Arbitration Act jurisprudence has played out. The most recent decisions are utterly divorced from the text and history of the relevant legislation and only make sense if you track the chain of reasoning in the preceding caselaw.
[1] I found that citation elsewhere and bought the Kindle book for the actual text. The original citation I found cited to page 243 of the print edition.
> If we take the public performance, maybe we run into what Professor Nimmer saw as a problem. Why isn't what used to be called a phonograph record store that sells phonograph records to 10,000 customers giving a public performance?
The bit about "phonograph record stores" is actually referencing a hypothetical posed by Prof. Nimmer in a 1982 textbook, which addressed the 1976 Copyright Act amendments at issue in the Aereo case. That hypothetical came up in an amicus brief to the court: https://www.americanbar.org/content/dam/aba/publications/sup... (at 7-8).
Breyer is talking about phonographs because that hypothetical references phonographs (and everyone is trying to understand what Congress meant in 1976). Note that a few pages later, Justice Sotomayor asks the attorney to extend the hypothetical to Dropbox and iCloud.
It seems plausible to me that something similar was driving Alito's question about compact discs, which this article also derisively referenced. It sounds to me like he might have been attempting an analogy about physical media in order to find out if there were meaningful lines to be drawn between types of storage.
I think you are correct: https://www.supremecourt.gov/oral_arguments/argument_transcr.... Starting on page 17, the Justices are addressing the argument that California downloads everything on the phone, and that a smartphone has one's "whole life" on it. Justice Roberts asks "what if it's a FitBit and not a smartphone?" Justice Alito then raises the examples of a flip phone and then a CD.
> Another fun fact: Clarence Thomas has only asked 1 question during oral arguments in something like 10 years.
For context: Justice Thomas has explained that's because, based on his experience as a lawyer prior to being a judge, he always found it irritating when a judge would interrupt the lawyer, interfering with their ability to present their arguments in a linear fashion.
The oral arguments are also a lot less significant than people think. When justices ask questions, they're used more for signaling than anything else, because they're already briefed on the case beforehand.
That doesn't sound like a good reason. Linear, polished presentations of arguments are for briefs. Oral arguments are for probing the cracks in the rhetorical armor. One should not be using the limited time to help a lawyer recite what's on a page.
> Oral arguments are for probing the cracks in the rhetorical armor.
They're not, and as pointed out below, even Rehnquist stated as much.
For SCOTUS, oral arguments are a formality. That doesn't mean they're not valuable, but their value comes from formalizing the arguments for thr record, because by that point, most of the interrogation (both literal and figurative) of the arguments has already been done.
Ugh, I hated that opinion. I was rooting for you guys and the cable argument was BS. I have always wondered about the tech you guys have/had and if you could turn your experience into a antenna/DVR that is intended to fit in a Morphie sized case. Everyone loves streaming but getting a lot of the shows OTA instead of paying Hulu or live events seems like an interesting case. Quite possible you have issues getting the antenna that small but still usable, but anyway...
I still have a handful of the antennas in a closet somewhere. They really were about the size of a dime.
A bunch of us started a new company called Starry after the Aereo decision, and we're still doing some crazy RF stuff (although this time around, it's as a WISP rather than TV).
> The Supreme Court is an openly — even proudly — technophobic institution. Cameras are forbidden, which means there are no images or videos from high-profile cases, and briefs and other legal filings only recently became available at the court’s website.
Not an auspicious beginning to start this off wrong. The opposition to cameras has nothing to do with the Justices being "technophobic" (after all, video cameras have been common place throughout the Justices adult lives). It's about the possibility of oral arguments becoming part of the 24/7 soundbite news cycle.
As to the website, the slow adoption of electronic filing has been driven more by the fact that it creates a duplicate set of procedures. You still need a paper system, so that e.g. prisoners can file cert petitions on paper. So you have to add the electronic system on top of that.
As to the article's substantive points, I think the premise that the "Supreme Court justices lack an understanding of what technology means" is incorrect. For example, Riley v. California, published four years ago, recognized that cell phone searches could result in searches of materials not on the cell phone--such as photos stored on the cloud. Going back a lot further, it's hard to read Justice Stevens' 1997 opinion in Reno v. ACLU (which struck down most of the Communications Decency Act), and conclude that he didn't understand the salient aspects of how the Internet works: https://www.aclu.org/legal-document/supreme-court-decision-r....
The whole analysis of Olmdstead and Smith v. Maryland is also confused:
> Nearly 40 years later, in 1967, seven Supreme Court justices echoed Brandeis’s thinking in a decision that overturned the ruling in the Olmstead case. But in the intervening years, Taft’s interpretation was the law of the land, which meant that wiretapping without a warrant was legal.
The Olmdstead case was not based on the Justices failing to understand the implications of phone technology: by 1928 a third of Americans had phones in their households, and Justice Taft who wrote the majority opinion had grown up with telegrams and used telephones for most of his adult life. The difference between Olmdstead and Smith v. Maryland was intervening decades of liberal 4th amendment precedent that expanded it far beyond its plain text.[1]
Likewise with Scalia and Jones (the GPS case). The 4th amendment is not a general "privacy" protection. It doesn't use that word or anything like it. It addresses "searches and seizures." Lots of people want to read it broadly to prohibit government tracking, but even those people have to admit that you have to do a bit of clever lawyering to argue that e.g. taking pictures of license plates is a "search" or "seizure" of "persons, houses, papers, [or] effects." In Jones, Scalia focused on attachment of a GPS device to the defendant's car, because physical trespass onto the defendant's private property (i.e., his effects) was an easy basis for finding the existence of an illegal search. That provided a basis for deciding that case that didn't requiring buying into broader theories of the fourth amendment.[2]
[1] I personally think Olmstead was right and Smith v. Maryland was wrongly decided. Under modern 4th amendment jurisprudence, something is protected under the 4th amendment if you have a "reasonable expectation of privacy" in that thing. In 1928, your phone calls were transmitted in the clear on the wires; anyone at the phone company could listen to your calls. It was objectively unreasonable to consider phone calls private.
Thank you. I was just typing out a similar response, and would add that while sure, sometimes technology is hard for them to grok, it's incumbent upon the lawyers to make the necessary analogies to the court for them to nit pick.
Sometimes they get things right, as I feel they did in Kyllo. Sometimes they get things wrong, as I feel they did in Grokster. But more often than not, I can read both the majority and minority opinions, and see that both sides are arguing from rational positions based on sound legal theory and precedent.
Of course judicial philosophy can tilt which way a justice finds, but again, most of the time it's well supported, and I think where most people see "technophobia" amongst the justices, they should see lawyers doing a poor job of making their cases plain.
> As to the website, the slow adoption of electronic filing has been driven more by the fact that it creates a duplicate set of procedures. You still need a paper system, so that e.g. prisoners can file cert petitions on paper.
True, but the Supreme Court's byzantine rules around paper sizes, font sizes, binding, and colored covers makes filing a Supreme Court case daunting. Perhaps that's by design. They could, like any other court that allows e-filing, allow standard printed copies of the filing, instead of requiring 6⅛" by 9¼" paper and binding.
it's a specialist bar and they're the 800 lbs gorillas: they get whatever they want, how they want it. I'd be delighted if everyone pushing paper onto my desk neatly bound each submission in the same size with strict page and typeface requirements, all neatly color-coordinated. Wouldn't you?
>Not an auspicious beginning to start this off wrong. The opposition to cameras has nothing to do with the Justices being "technophobic"
The camera thing is always my barometer of when a criticism of our judicial system's tech problems is going to be worthwhile.
I've only followed a few SCOTUS cases with any close attention, but it only took reading ONE oral argument transcript followed by seeing the news to understand why they shouldn't allow cameras.
The news' coverage was downright atrocious; the only possible explanation outside actual malicious intent to mislead the audience is if they didn't read any of the memoranda or attempt to understand the case. I don't trust those people with video of oral argument.
> You still need a paper system, so that e.g. prisoners can file cert petitions on paper. So you have to add the electronic system on top of that.
They should just give prisoners access to computers. They might actually learn some useful skills which would reduce recidivism.
I understand there are concerns that prisoners could communicate with the outside world and start harassing people, ordering drugs or murders, plotting escape, etc. But surely a sufficiently locked down system could allow inmates to use computers but prevent unsupervised communication with the outside world? Maybe limit their web access to a curated selection of educational websites? Some kind of filtering proxy could block commenting, etc.
I work for the United States District Courts—- article fails to mention the courts hosts one of the largest electronic database systems ever. Millions of electronic PDFs for millions of cases.
The US Courts uses kubernetes/ open shift, etc..
Analog isn’t the right word. It’s personal preference and work flow.
There are systems in place scotus could use. SCOTUS are very aware of technology and how it works. That is their job to understand.
Agreed! In fact, even a cursory visit to the SCOTUS page clearly shows that whoever runs it is no luddite: not only you can get scanned transcripts of cases reaching back to 80s, you can stream audio from arguments back to 2010!
Compared with the California state courts, the USDC is awesome. But it's hardly a paragon of cutting edge tech with its Craigslist aesthetics and ridiculous paywalls. Try being on the user-side of it for a while, or better yet the real-life scenario of trying to upload and organize 15 PDFs at 11:40 pm on the last day for filing ... only to have it rejected by the clerk the next day for failing to select the appropriate event.
Still, it's a massive leap forward over the Superior Court's fragmented system. And kudos to you guys for keeping CM/ECF up and available. It's a very robust system.
Hit pieces like this only serve to further prove cameras shouldn't be in the courtroom. The seemingly archaic questions about phonographs and compact discs are not because the justices are living in the 70s, but an attempt to better understand how current issues relate to existing case law.
The last thing we need are out of context soundbites on the evening partisan talk show further polarizing the court.
30 comments
[ 2.8 ms ] story [ 52.9 ms ] threadI was an early employee of Aereo (the case mentioned in the article where Breyer went on about phonograph record stores), and I worked there when we were sued and ultimately won the appeal in the 2nd circuit, when we won in 1st circuit, when SCOTUS granted cert, and ultimately when we lost.
One of the strangest parts is that you have no idea when they'll issue your decision. They give a certain amount of advance notice that they'll be issuing decisions on certain days, but you don't actually know which decisions.
For a couple months after oral arguments, we had probably half a dozen mornings on pins and needles while we'd wait to find out if they're going to decide our case. It was really, really hard to concentrate on getting anything done.
Another fun fact: Clarence Thomas has only asked 1 question during oral arguments in something like 10 years.
Edit: some info presented further down
[1] I found that citation elsewhere and bought the Kindle book for the actual text. The original citation I found cited to page 243 of the print edition.
Breyer asked:
> If we take the public performance, maybe we run into what Professor Nimmer saw as a problem. Why isn't what used to be called a phonograph record store that sells phonograph records to 10,000 customers giving a public performance?
The bit about "phonograph record stores" is actually referencing a hypothetical posed by Prof. Nimmer in a 1982 textbook, which addressed the 1976 Copyright Act amendments at issue in the Aereo case. That hypothetical came up in an amicus brief to the court: https://www.americanbar.org/content/dam/aba/publications/sup... (at 7-8).
Breyer is talking about phonographs because that hypothetical references phonographs (and everyone is trying to understand what Congress meant in 1976). Note that a few pages later, Justice Sotomayor asks the attorney to extend the hypothetical to Dropbox and iCloud.
For context: Justice Thomas has explained that's because, based on his experience as a lawyer prior to being a judge, he always found it irritating when a judge would interrupt the lawyer, interfering with their ability to present their arguments in a linear fashion.
The oral arguments are also a lot less significant than people think. When justices ask questions, they're used more for signaling than anything else, because they're already briefed on the case beforehand.
They're not, and as pointed out below, even Rehnquist stated as much.
For SCOTUS, oral arguments are a formality. That doesn't mean they're not valuable, but their value comes from formalizing the arguments for thr record, because by that point, most of the interrogation (both literal and figurative) of the arguments has already been done.
A bunch of us started a new company called Starry after the Aereo decision, and we're still doing some crazy RF stuff (although this time around, it's as a WISP rather than TV).
Not an auspicious beginning to start this off wrong. The opposition to cameras has nothing to do with the Justices being "technophobic" (after all, video cameras have been common place throughout the Justices adult lives). It's about the possibility of oral arguments becoming part of the 24/7 soundbite news cycle.
As to the website, the slow adoption of electronic filing has been driven more by the fact that it creates a duplicate set of procedures. You still need a paper system, so that e.g. prisoners can file cert petitions on paper. So you have to add the electronic system on top of that.
As to the article's substantive points, I think the premise that the "Supreme Court justices lack an understanding of what technology means" is incorrect. For example, Riley v. California, published four years ago, recognized that cell phone searches could result in searches of materials not on the cell phone--such as photos stored on the cloud. Going back a lot further, it's hard to read Justice Stevens' 1997 opinion in Reno v. ACLU (which struck down most of the Communications Decency Act), and conclude that he didn't understand the salient aspects of how the Internet works: https://www.aclu.org/legal-document/supreme-court-decision-r....
The whole analysis of Olmdstead and Smith v. Maryland is also confused:
> Nearly 40 years later, in 1967, seven Supreme Court justices echoed Brandeis’s thinking in a decision that overturned the ruling in the Olmstead case. But in the intervening years, Taft’s interpretation was the law of the land, which meant that wiretapping without a warrant was legal.
The Olmdstead case was not based on the Justices failing to understand the implications of phone technology: by 1928 a third of Americans had phones in their households, and Justice Taft who wrote the majority opinion had grown up with telegrams and used telephones for most of his adult life. The difference between Olmdstead and Smith v. Maryland was intervening decades of liberal 4th amendment precedent that expanded it far beyond its plain text.[1]
Likewise with Scalia and Jones (the GPS case). The 4th amendment is not a general "privacy" protection. It doesn't use that word or anything like it. It addresses "searches and seizures." Lots of people want to read it broadly to prohibit government tracking, but even those people have to admit that you have to do a bit of clever lawyering to argue that e.g. taking pictures of license plates is a "search" or "seizure" of "persons, houses, papers, [or] effects." In Jones, Scalia focused on attachment of a GPS device to the defendant's car, because physical trespass onto the defendant's private property (i.e., his effects) was an easy basis for finding the existence of an illegal search. That provided a basis for deciding that case that didn't requiring buying into broader theories of the fourth amendment.[2]
[1] I personally think Olmstead was right and Smith v. Maryland was wrongly decided. Under modern 4th amendment jurisprudence, something is protected under the 4th amendment if you have a "reasonable expectation of privacy" in that thing. In 1928, your phone calls were transmitted in the clear on the wires; anyone at the phone company could listen to your calls. It was objectively unreasonable to consider phone calls private.
[2] bmelton ↗ Thank you. I was just typing out a similar response, and would add that while sure, sometimes technology is hard for them to grok, it's incumbent upon the lawyers to make the necessary analogies to the court for them to nit pick. jayess ↗ > As to the website, the slow adoption of electronic filing has been driven more by the fact that it creates a duplicate set of procedures. You still need a paper system, so that e.g. prisoners can file cert petitions on paper. mark212 ↗ it's a specialist bar and they're the 800 lbs gorillas: they get whatever they want, how they want it. I'd be delighted if everyone pushing paper onto my desk neatly bound each submission in the same size with strict page and typeface requirements, all neatly color-coordinated. Wouldn't you? forgottenpass ↗ >Not an auspicious beginning to start this off wrong. The opposition to cameras has nothing to do with the Justices being "technophobic" skissane ↗ > You still need a paper system, so that e.g. prisoners can file cert petitions on paper. So you have to add the electronic system on top of that.
Sometimes they get things right, as I feel they did in Kyllo. Sometimes they get things wrong, as I feel they did in Grokster. But more often than not, I can read both the majority and minority opinions, and see that both sides are arguing from rational positions based on sound legal theory and precedent.
Of course judicial philosophy can tilt which way a justice finds, but again, most of the time it's well supported, and I think where most people see "technophobia" amongst the justices, they should see lawyers doing a poor job of making their cases plain.
True, but the Supreme Court's byzantine rules around paper sizes, font sizes, binding, and colored covers makes filing a Supreme Court case daunting. Perhaps that's by design. They could, like any other court that allows e-filing, allow standard printed copies of the filing, instead of requiring 6⅛" by 9¼" paper and binding.
The camera thing is always my barometer of when a criticism of our judicial system's tech problems is going to be worthwhile.
I've only followed a few SCOTUS cases with any close attention, but it only took reading ONE oral argument transcript followed by seeing the news to understand why they shouldn't allow cameras.
The news' coverage was downright atrocious; the only possible explanation outside actual malicious intent to mislead the audience is if they didn't read any of the memoranda or attempt to understand the case. I don't trust those people with video of oral argument.
They should just give prisoners access to computers. They might actually learn some useful skills which would reduce recidivism.
I understand there are concerns that prisoners could communicate with the outside world and start harassing people, ordering drugs or murders, plotting escape, etc. But surely a sufficiently locked down system could allow inmates to use computers but prevent unsupervised communication with the outside world? Maybe limit their web access to a curated selection of educational websites? Some kind of filtering proxy could block commenting, etc.
The US Courts uses kubernetes/ open shift, etc..
Analog isn’t the right word. It’s personal preference and work flow.
There are systems in place scotus could use. SCOTUS are very aware of technology and how it works. That is their job to understand.
Still, it's a massive leap forward over the Superior Court's fragmented system. And kudos to you guys for keeping CM/ECF up and available. It's a very robust system.
a. for the blind with screen readers
b. for those with javascript disabled
c. for text browsers like lynx and links
d. for fetchers like wget and curl
e. for people with cookies disabled
f. for OSes including Ubuntu, Android, etc.
g. for browsers including Firefox, Chromium, Edge, Safari, etc.
h. for dial-up and satellite connections
i. for people with older computers, like a Pentium III
Actually try it. Make sure it is practically usable, not just theoretically possible to use.
https://www.c-span.org/special/?camerasInTheCourt
The last thing we need are out of context soundbites on the evening partisan talk show further polarizing the court.