
The Supreme Court Is Stubbornly Analog By Design - sprucely
https://fivethirtyeight.com/features/the-supreme-court-is-stubbornly-analog-by-design/
======
kevincennis
SCOTUS is weird.

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.

~~~
rayiner
Note that the article takes Breyer's question about phonograph record stores
_way_ out of context:
[https://www.supremecourt.gov/oral_arguments/argument_transcr...](https://www.supremecourt.gov/oral_arguments/argument_transcripts/2013/13-461_97l5.pdf)
(page 6).

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...](https://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs-v3/13-461_pet_amcu_profs-
psm-dn.authcheckdam.pdf) (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.

~~~
dionidium
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.

~~~
rayiner
I think you are correct:
[https://www.supremecourt.gov/oral_arguments/argument_transcr...](https://www.supremecourt.gov/oral_arguments/argument_transcripts/2013/13-132_bp7c.pdf).
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.

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tdhz77
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.

~~~
mark212
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.

~~~
tdhz77
UI is ugly, I’m porting it to react. We are speeding up dev time. I hope to
fix your frustrations!

~~~
tropo
Please make it work:

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.

------
rayiner
> 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...](https://www.aclu.org/legal-document/supreme-court-decision-
reno-v-aclu-et-al).

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] [http://lawandlibertyblog.com/nyujll/2014/6/3/how-long-is-
too...](http://lawandlibertyblog.com/nyujll/2014/6/3/how-long-is-too-long-
the-4th-amendment-and-the-mosaic-theory) ("Proponents of the mosaic theory
argue that at some point enough individual data collections, compiled and
analyzed together, become a Fourth Amendment search.").

~~~
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.

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.

~~~
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?

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jedanbik
C-SPAN has a section on their website where they show commentary from each
supreme court judge regarding their view on cameras in the court:

[https://www.c-span.org/special/?camerasInTheCourt](https://www.c-span.org/special/?camerasInTheCourt)

------
slededit
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.

------
shmerl
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.

