Technology loses at the Supreme Court, again.

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.

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