Supreme Court will hear first arguments by phone
WASHINGTON — This is how the Supreme Court embraces technology. Slowly.
It took a worldwide pandemic for the court to agree to hear arguments over the telephone, with audio available live for the first time. CSPAN plans to carry the arguments.
Just two years ago case filings were made available online, decades after other courts. Other forays into technology, including posting opinions online, haven’t always gone smoothly.
Chief Justice John Roberts acknowledged in 2014 that courts always will be cautious when it comes to embracing the “next big thing” in technology.
And even the decision to hold arguments by phone is “sort of retro,” given much of the country and other courts are doing meetings and arguments using video conferencing, said Clare Cushman, the director of publications at the Supreme Court Historical Society.
But the decision remains a “giant leap forward,” Cushman said, for a court that has shunned technology in favor of tradition.
The court used an obsolete document delivery system, pneumatic tubes, until 1971. It was slow to add computers and was late in transitioning from printing opinions in the court’s basement on Linotype machines, which used metal type, to electronic printing in the early 1980s.
Before the coronavirus outbreak, the justices circulated messages and opinion drafts on paper rather than by email.
Still, most of the nine justices — six of them over the age of 65 — seem perfectly comfortable with modern technology in their own lives.
Justice Elena Kagan has said she’s on Twitter, and Justice Samuel Alito has described reading briefs on an iPad. Justice Sonia Sotomayor wears an electronic sensor that monitors her diabetes. And Justices Neil Gorsuch and Brett Kavanaugh have children who might be expected to text their fathers.
Even the court’s two oldest justices are somewhat tech savvy. This month, 81year-old Justice Stephen Breyer used Zoom to talk to students at a New York school.
And 87-year-old Justice Ruth Bader Ginsburg has said she reads her email on an iPhone and uses an iPad.
The court has come a long way since 1993, when Justice Anthony Kennedy, now retired, marveled over a new device in his home and invited two colleagues who lived nearby to come use it.
“In my lower level office at home I have a FAX machine. The thing works 24 hours a day. You can use it to send and receive any time you like,” Kennedy wrote in a note now in the Library of Congress archives.
Still, the decision to hold 10 arguments in cases via telephone during six days in May and let the public listen in was unimaginable even two months ago. The new arrangement might be good for one month only, assuming the justices can return to courtroom arguments when their new term begins in October. But several advocates of greater transparency hope the justices will allow simultaneous broadcasting of arguments even after the pandemic is over.
“You can’t walk back these kinds of things,” New York University law professor Melissa Murray said, adding that live audio gives Americans the ability to monitor the third branch of government at work. “I don’t know why you wouldn’t want that.”