The Chief Justice began his year-end report on the federal judiciary with a colorful historical excursion:
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.”
But “[n]ews of this dawning era was slow to reach the Supreme Court,” Chief Justice Roberts noted. It was not until the new Supreme Court building opened in 1935 that a pneumatic document delivery system came to the Court, where it remained in operation until 1971.
Chief Justice Roberts finds two lessons in this history. First, exciting new technology becomes old and unexciting and then obsolescent. Second, the Court has always been slow to adopt new technology. When it comes to technology, the justices prefer the old and unexciting. “Courts are simply different in important respects when it comes to adopting technology, including information technology,” the Chief explains. As “neutral arbiters of concrete disputes” the courts should only take on new technologies that “advance their primary goal of fairly and efficiently adjudicating cases through the application of law.”
The Supreme Court still works primarily in paper, although Roberts informs us that this will soon be changing, as the Court is hoping to have its own electronic filing system up and running in 2016. “Once the system is implemented, 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 reasons for the slow implementation? Ensuring access is one (“[T]he courts must remain open for those who do not have access to personal computers and need to file in paper, rather than electronic, form.”). Security is another; the decentralized nature of the federal judiciary yet another.
The Chief wrapped up his report on a predictable note, with a celebration of tradition:
Federal judges are stewards of a judicial system that has served the Nation effectively for more than two centuries. Like other centuries-old institutions, courts may have practices that seem archaic and inefficient—and some are. But others rest on traditions that embody intangible wisdom. 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.
As technology proceeds apace, we cannot be sure what changes are in store, for the courts or society generally. Innovations will come and go, but the judiciary will continue to make steady progress in employing new technology to provide litigants with fair and efficient access to the courts.
And a touch of the poetic:
The sculptures that adorn the Supreme Court provide a reminder of that resolve, a resolve that has outlived the Court’s long-gone pneumatic tube system. The often overlooked east pediment, installed on the rear portion of the building, features images of historic lawgivers and other symbolic figures. It is flanked by imagery drawn from a well-known fable: A hare on one side sprints in full extension for the finish line, while a tortoise on the other slowly plods along. Perhaps to remind us of which animal won that famous race, Cass Gilbert placed at the bases of the Court’s exterior lampposts sturdy bronze tortoises, symbolizing the judiciary’s commitment to constant but deliberate progress in the cause of justice.
Roberts clearly wrote all this with more than electronic filing on his mind. Most media coverage of the Chief’s year-end report raised the obvious issue that Roberts so carefully avoided mentioning: cameras in the Supreme Court. Chuck Grassley, incoming chair of the Senate Judiciary Committee, responded to the report with a call for allowing cameras at oral argument. Grassley even claimed the mantle of the founding generation: “[T]he courts have yet to embrace the one technology that the founders would likely have advocated for—cameras in the courtroom. The founders intended for trials to be held in front of all people who wished to attend.” “The First Amendment supports the notion that court proceedings be open to the public and, by extension, the news media and broadcast coverage, the same way CSPAN opened Congress to the public,” Grassley wrote. “With the high profile cases coming before the courts, it’s even more important to add greater accountability and public scrutiny to the federal judiciary, a system that includes judges with lifetime tenure.”
Perhaps the Chief’s report can be read as a shift from the categorical “no” response that has long been the justices’ official position on cameras in the Court to something like: “We’ll get there, but not quite yet.”