Technology loses at the Supreme Court, again.

Justice Kennedy's memo to his clerks requesting help setting up his email account.
Justice Kennedy’s memo to his clerks requesting help setting up his email account.

By Cara Gallagher, Weekend contributor

Being with family over the holidays resulted in harmonious interactions and your typical familial dust ups. One such kerfuffle, this one of the generational sort, arose when we volunteered to upgrade my father’s iPad 1 to a newer model. We’ve tried to do this before, for his birthday, and he repeatedly denies our offer. Yes, that’s a first edition iPad that he still uses and refuses to give up. Most would react to the upgrade with a swift “YES” and a maybe a backflip. His dismissive reaction is likely attributable to the glimpse he’s seen of a future where he’s forced to alter past practices in order to integrate new technology. That tension doesn’t look appealing. The possibilities of increased efficiency and productivity aren’t worth the challenges that come with new technology like learning new tricks, updating skills, and encountering hurdles along the way. After reading Chief Justice John Roberts’ year-end report, I imagine his mindset is fixed in very much the same way my father’s is when it comes to outfitting the Court with 21st century technology.

Evasive though Roberts was throughout the report about what technology he’s denying, there was no doubt that whatever it is, the answer is a firm “No. Not now.” I assumed he was referring to the constant requests for allowance of cameras or maybe the occasional question of whether smartphones will ever be allowed in the Courtroom. I then remembered that every time I go inside the Courtroom I am only allowed a pen and notepad, so when he uses the word “technology” it might actually be in the broadest sense of the term.

The majority of the Chief’s 16-page report is about technology and the Court. It starts with a history of technology used by the Justices and staff, and proceeds with explanations about why your iPad will not see the inside of the Court any time soon. Listed below are some of the highlights from the report and light commentary on a few points.

  1. The Court had a brief affair with technology way before any of the rest us did, in 1931, when “pneumatics” were introduced to move decisions and other critical information faster to the press. Pneumatics are those suction tubes that I used to watch my parents use at bank drive-throughs to quickly transport the money between the driver and the teller. This technology lasted until 1971 when Chief Justice Burger got rid of them. That Intel debuted its first microprocessor the same year is an irony not lost on me.
  2. Much like my Dad, efforts for the Court to keep up with the latest advances in technology are pointless as “the ceaseless growth of knowledge in a free society produces novel and beneficial innovations that are nonetheless bound for obsolescence from the moment they launch.” There’s no denying — certainly not to anyone who had a Commodore 64, Sega Genesis, or Apple Newton — that specific devices have short shelf lives. However, I say with confidence communication technology essentials, those that are a social force (electronic mail, cameras, smartphones, and the internet) today and in the future, are here to stay.
  3. The Court, according to Roberts, is often “late to the harvest of American ingenuity” of their own volition, despite the increase in tech cases their hearing about matters involving the use of smartphones, complex software patents and intellectual property (Aereo), and global positioning systems (Jones). When the cellphone cases were heard in 2014 (Riley & Wurie), it was revealed that few Justices have and use smartphones themselves. A significant amount of the work done in the Court is done on paper circulated not via email but by the clerks. It’s concerning, to say the least, to hear the Chief speak of the Court’s aversion to technology in this report while they continue to be asked to interpret cases rooted in the social effects of technology, whose impact on us is potentially limitless.
  4. Roberts spends the last half of the report attempting to prove an assertion that the Court isn’t as behind the times as many seem to think. After all, they’ve been employing the CM/ECF system and PACER for decades, which have increased the Justices’ pace of work. We can expect an update to the CM/ECF feature that will allow you to log in with one central sign-on (you can’t already do that?!) and the Court will have its own electronic filing system for 2016. There are caveats of course. “Initially, the official filing of documents will continue to be on paper… Once the system has operated effectively for some time…the Court expects that electronic filing will be the official means…but paper filings will still be required. Parties proceeding pro se will continue to submit documents only on paper.
  5. These may be modest, snail-like steps toward 21st century skills, but the Court can’t be all things to all people, certainly not technophiles. “Unlike commercial enterprises, the courts cannot decide to serve only the most technically-capable or well-equipped segments of the public. 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.” Equity is a necessary goal and a laudable overriding concern for the court itself. However, according to this statement the same technology aversion must follow for the general public and the press when interacting with the court.
  6. There was a reminder that, in the court’s opinion, if it ain’t broke, don’t fix it. “Federal judges are stewards of a judicial system that has served the Nation effectively for more than two centuries. Judges and court executives are understandably circumspect in introducing change to a court system that works well until they are satisfied that they are introducing change for the good.
  7. And, finally, a conclusion as antiquated as the Court’s tech policies – a retelling of Aesop’s fable about the tortoise and the hare. Slow and steady, the tortoise won the race thanks to the whim, impatience, and napping of the hare. Cass Gilbert created such images at the base of the Court’s lampposts “symbolizing the judiciary’s commitment to constant but deliberate progress in the cause of justice.”

Much like my father and his iPad1, Roberts and the justices will reach a point when they will be forced to confront new systems that simply cannot support old technology and they will have to adjust to the dramatic worldwide changes that have occurred over the last twenty years. Adoption of new information technology and acceptance of widely used devices will come either as a consequence of their deliberate progress or from the influence of tech savvier future justices. Neither seems likely to happen anytime soon.

End note:  A shout out to my Dad, who apparently is not the only one hanging on to the iPad 1 indefinitely.  Old habits do indeed die hard.

The views expressed in this posting are the author’s alone and not those of the blog, the host, or other weekend bloggers. As an open forum, weekend bloggers post independently without pre-approval or review. Content and any displays or art are solely their decision and responsibility.

53 thoughts on “Technology loses at the Supreme Court, again.”

  1. If any of the Justices have family members who own a Sony Play Station or Xbox gaming console, then stronger laws would have been implemented against hackers who hack them.

  2. A couple of observations. About fifteen years ago I was involved in a conversation about how our time would be viewed several hundred years in the future. One suggestion could be that there is almost too much information being generated, resulting in a lot of noise and that the information must be reformatted in perpetual change, meaning essentially floating and dependent upon upgrading of data formats, that information is going to be largely unavailable in the next millennia.

    A great example of this is that most data is stored in media that degrades, and is usually magnetically stored and in some cases the formats get lost and much effort is needed to decode it later as legacy software becomes less available an is often kept in media that are no longer supported. And example of this are data files stored on 8″ floppies or tape drives and the hardware to read it and the software to interpret it are not available either through obsolescence or degradation also.

    Next is the reliance on links that have two areas of failure. One, the links depend on protocols of the day and that they are subject to the linked resource being available indefinitely.

    Some of the web archiving services suffer from this problem in that some of the webpages of the mid to late 1990’s are no longer online and hence the full information is not available because it is interdependent on other resources. Whereas with text books they have no electronic shelf life and if proper storage and materials are used they have lifespans of hundreds of years or more.

    This is why in my view it is important to maintain hard copies such as paper for matters of great importance. Microfilm is one answer but that is become legacy and scanning to present electronic media presents the problems aforementioned.

    A lesson to be learned from this was the fact that the silent films made up until the late 1920’s are nearly entirely gone in terms of the total numbers made. The two biggest contributors to this were the fact they were not properly archived and, worse, the medium they were recorded into had a property that it was extremely flammable and it also degraded quickly which rendered it unviewable. A similar event could happen with electronic media of today.

    We are in a state where too much information is out there to properly archive into long term storage. We need to be selective and unfortunately the matters we consider of importance might not be of the same importance to a future generation. And if only fragments of data are left over, it could lead to assumptions that are not necessarily true.

    Let’s hope in several millennia our society’s history and zeitgeist does not fall into obscurity as did the Etruscans.

  3. Or accidentally crush, step on, spill on or place a highly magnetic “something” on it and get a “used” newer one from that friend in the Ford in the alley on 3rd street. Just DO NOT have the unit still in the box.

    Sorry my conniving seagoing side took over.

    1. LOL Canon for Veterans Ministry – you are a riot I enjoy snarking humor. I can’t help it. They rewrite these programs so quickly. It’s new and different new and different. I am all for technology, but a lot of times what’s wrong is a sea of viral bits and bytes from software programs that got through and were never updated properly and screwed with all of our stuff. I am one of these fossils everyone is laughing about. I have a laptop and I just download new software on it when Windows becomes obsolete. But I still use a little Cell Phone as all I have is my Husband in the Veterans Home and I don’t need the toys. I don’t trust Clouds. sorry. Maybe that’s old fashioned, but they keep saying how safe they are is way too much for me. If it comes to the point I have to get a stupid phone, I will get an external hard drive to download stuff on if I can. I don’t know if I can do that or not, but I will try,

  4. The problem is that the iPad 1 really doesnt work very well. It’s so old that many of the newest apps can’t be downloaded and some online services don’t work. You can’t update an iPad 1 further than an IOS 5. My ipad1 got glitchy and shut down often, even doing simple things. My old iPad 1 hated sites with heavy graphics and crashed so many times in a row I was ready to chuck it out the window. On this site for example, if a thread had several hundred comments, my iPad would crash, toward the end of the thread. I couldn’t type as fast as I liked, it would crash. The new iPad Air works like a charm, can’t say enough good things about it. Tell your dad to read my rave reviews of the new iPad Air and the ease of use Cara, lol, he may change his mind.

  5. I agree with Rafflaw. And until we do something besides loop a hard drive around a spool with bits and bytes – the more programs that we introduce with the binary numbers the worse it’s going to get with the software problems. But I can see her Dad not wanting to let go of something that works……..and why because the only reason they stop working is because the software companies stop supporting them 😉

  6. I was literally forced to learn to use a computer in 1985. My predecessor had only kept correspondence, spreadsheets, and databases on 5.25inch floppies. Had to load the operating system, then the program and then the data. Only one disk drive and small green screen. No menu. Learned MS.DOS . Make a directory, change, copy files and most special?? Getting a 10 MB hsrd drive and breaking the Lotus, Word star and Harvard Graphic codes so they were already there..

    Ok…now after all that, what’s my point? Lotus is essentially gone, Wordstar gone, Harvard Graphics the same. Can’t remember the database syst. The files? Wordperfect converted Word star for awhile. Oh yes, Dollars and Sense…gone. Quicken in but wouldn’t translate.

    Learned to print and file essentisl papers when a scrstchef floppy drive died. Something hit the disk track which corruptd assigned files locations and segments.
    The tech world is often discussing how to keep data readable…usable…translatable. drives crash. Graphic format chgs.

    The Rosetta Stone is a reminder. Each civilization thought it would last.

    My closing thought….Sony is the latest example of why I support keeping USSC offline. Even if completely electronically isolated, just one thumb drive now carries tons of paper. Older microwave tech can
    Track keystrokes through windows with shades. I don’t want to read the SCJ’s private comments/notes.

  7. I started in computers in 1963 on an IBM 6400. I got my first personal computer when Tandy came out with the TRS-80 w/4k of data storage. Yes, 4k, that is no typo. Over the years I have happily upgraded. However, as time went on, the systems became more and more complex. As it become more complex I started to barter with much younger people to fix my computers as they malfunctioned.
    At this point in my life if I can get someone else to do the work for me, I am a happy camper. I am with the father and the court here. If it works, don’t fix it.

  8. I don’t care if they chisel their deliberations into stone as long as they follow the rule of law.

  9. I don’t have any issues with being able to see and hear the Supreme Court goings on. However, I do have great reservations with it being streamed live or shown live. We already have enough grandstanding lawyers and people “playing to the camera”.

    Record it and then let us have the option to see the proceedings AFTER the fact. Since we in the public have no ability to participate in a live format ANYWAY………. it doesn’t matter if we see it on a “time delay”

    To have the proceedings going on ‘live’ would only allow more pressure to be put upon the lawyers, participants and especially on the Justices. These are serious and solemn proceedings that have a wide reaching effect and should be conducted in a manner that is not subject to persuasion and hysteria.

    The hysteria can start after the show is over 🙂

  10. I am assuming that everyone would agree that hard coupies of court documents never be discontinued, however I see nothing wrong with having an electronic means of seeing the documents as well. I don’t see why we couldn’t see as well as hear the arguments and for free.

  11. I would like all documents filed at the Supreme Court to be on paper and filed safely. I would also like all of them to be on electronic availability for FREE to the public. I do not want to see Ginsberg and Scalia on camera during oral arguments. Their voices on CSPAN are enough.
    The Chief Justice employed the word for “free” in his statement about availability of documents to the public. Lyle Denniston said that they would be available on Pacer. That means we have to pay.

    Smartphones. Put all of you private information onto your Smartphone. For example, social security number, bank account numbers. Make transactions on the Smartphone. Then drive by a Stingray. I am not talking about an automobile which some old artFays may be familiar with. Google: Stingray.
    Dumbschmucks use Smartphones. Be safe out there.

    When someone fries the Supreme Ct computers and all your papers for your Supreme Ct case are filed there then hope that there is a paper copy backup.

  12. I sympathize with some of the reasoning of the Court for clinging to paper, hard copies as opposed to going completely digital. While I use the computer for practically everything from work to play, I also am a firm believer in a hard copy back up as well as an easily accessible digital file. Even in my previous occupation, where we had off site back ups of all digital files, I kept hard copies in my client’s files as well as of any correspondence electronic or written. That practice saved my behind several times from customers who conveniently forgot correspondence that they had sent to me, and waivers that I had made them sign when they initiated on trades that I had recommended against. HARD COPY back ups!!!

    Computers can fail. Discs can be damaged or erased. Electronic documents are subject to being “edited”, hacked or altered after the fact and this is extremely worrying.

    This last is something that I have expressed my reservations about digital books. In our zeal to whitewash history, to be politically correct some people have seriously suggested altering the text in some iconic, historical and important novels to “bring them into the 21st century”. One such novel is Huckleberry Finn, where the portrayal of life PRE Civil War in the South includes things that are offensive in today’s society. The proposal is to remove the “N” word. [I use the euphemism here so I won’t get put into the time out wordpress bin]. Lightening up on many of the plot elements to keep people from having “triggering” events and ending up on the fainting couch.

    In effect censoring the books, and erasing the depth, meanings, symbolism and frankly the reason for the book in the first place. If all we have are digital copies……who would know if the book(s) have been bowdlerized? When you have a hard copy of the book on your shelf…..no on is going to come in an change vital words.

    As a Supreme Court Justice, this would be a concern with digital only copies. How easy would it be to alter a few words here and there and totally change the meanings of the decisions that have been made. Change the words in a dissent or in an argument that has been submitted. Erase or lose emails….ala the IRS so that the dialogue between justices is lost. Easy. That would be so very very easy. We see it happening all the time.

    Items in the “Cloud”……if it is your family photos and other types of documents and someone hacks them or the cloud technology doesn’t prove to be as reliable as we have been led to believe…..no big deal. When it is historical documents of great importance that can be hacked or lost…..it IS a big deal.

    In this case I approve of them sticking to the tried and true. Pen and paper, hard copies of documents.

  13. My initial reaction upon reading this is that the refusal/failure of the Court itself to stay up to date with technology emphasizes the power which the Judicial Clerks exercise. Justices who don’t themselves keep up to date must rely on their Clerks to educate them about technology, for both procedural and substantive Court matters. This will always occur to some degree, but it can lead to “blind spots” on the Court.

    Which reminds me of the “cert. pool.” [For those of you who don’t know about this type of pool, it is the practice of assigning one random Clerk to prepare a memo to all participating Justices about a particular petition for certiorari.] This process minimizes the involvement of the Justices themselves in reviewing requests that the Court accept a case for review..

    While most Justices may believe that the “cert. pool” is a good thing [I think Alito does not participate], this Supreme Court “outsider” [I’ve sat at Counsel’s table in the Supreme Court once] strongly disagrees. While screening for “the crazies” and “clearly not cert. worthy” is needed, I think that one way Justices (who lead fairly isolated lives) can better “keep in touch” with the real world is by personally reviewing potentially “cert. worthy” cert. petitions. Not all of them all of the time, obviously, but reading some of them on a regular basis.

    The manner in which the memo going from the random Clerk to participating Justices is written will vary depending on the author of the memo. While the Clerks are very bright, they can lack insights and perspectives that come from practicing law for many years. Which can skew the caseload of the Court, since it reviews such a small percentage of the cases in which petitions are filed.

    With modern day technology, it should be very easy for Justices to quickly scrutinize cert. petitions.

  14. As one who had her iPad1 for far too long, my kids decided I needed an iPad Air. Unlike your dad I was thrilled, I almost did the happy dance like a kid, lol. It’s been a sheer pleasure using it and setting it up was incredibly simple. All my stuff from my old iPad was transferred flawlessly via the cloud. Amazing technology, I love this thing.

    As for the Justice Roberts, good grief get up to speed. I think Americans should be able to see what goes on in the SCOTUS live and streaming.

  15. I knew about the paper filing requirements. That started me wondering if they allow them to be printed on inkjet or laser, or do they have to be typed on an old Royal. I need to know before I list it for sale on eBay.

    How about photocopies? Is it safe to get rid of my stash of carbon paper?

  16. It used to be that older people were respected for their vast experience and ample knowledge of past events, traditions, processes. Today all of that is available with the tap of a plastic key. People are respected for their grasp of new technology. Has the notion of wise elders become obsolete just when all of us baby boomers are getting there?

  17. Sorry to burst your bubble but the old ipad works better than the new one and beware IOS8. I don’t blame your dad. Of course, we will be force to use the new operating system as bad as it is as apps are forced to reject any ipad less that IOS 7

  18. Justice Roberts and his majority are living in the 50’s so why not use old technology?

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