5 ms·

The Supreme Court Is Stubbornly Analog By Design

57 points by sprucely 8y ago

shmerl 8y ago
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.
kevincennis 8y ago
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.
- Zanta 8y ago
  Justice Thomas also broke a multi-year streak of silence to make fun of his alma mater, Yale. Playing the long game.
  - User23 8y ago
    This is because oral arguments don't actually matter. Chief Justice Rehnquist makes this abundantly clear in his wonderful book The Supreme Court.
    - erric 8y ago
      If they don’t actually matter, why have them? Edit: some info presented further down
    - wahern 8y ago
      Maybe you're misremembering? This is what Chief Justice Rehnquist said, Speaking for myself, I think it does make a difference: In a significant minority of the cases in which I have heard oral argument, I have left the bench feeling differently about a case than I did when I came on the bench. The change is seldom a full one-hundred-and-eighty-degree swing, and I find that it is most likely to occur in cases involving areas of law with which I am least familiar. -- Rehnquist, William H.. The Supreme Court (Kindle Locations 4154-4157).[1] Especially as politics and the law has become more partisan (ideologically if not according to party), of course oral argument will be less likely to change the ultimate judgment. But in a caselaw system as ours reasoning is nearly as important, and sometimes more important, than the particular judgment. Just look at the way the Federal Arbitration Act jurisprudence has played out. The most recent decisions are utterly divorced from the text and history of the relevant legislation and only make sense if you track the chain of reasoning in the preceding caselaw. [1] I found that citation elsewhere and bought the Kindle book for the actual text. The original citation I found cited to page 243 of the print edition.
- rayiner 8y ago
  Note that the article takes Breyer's question about phonograph record stores way out of context: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2013/13-461_97l5.pdf https://www.supremecourt.gov/oral_arguments/argument_transcr... (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/supreme_court_preview/briefs-v3/13-461_pet_amcu_profs-psm-dn.authcheckdam.pdf https://www.americanbar.org/content/dam/aba/publications/sup... (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 8y ago
    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 8y ago
      I think you are correct: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2013/13-132_bp7c.pdf https://www.supremecourt.gov/oral_arguments/argument_transcr.... 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.
- chimeracoder 8y ago
  > Another fun fact: Clarence Thomas has only asked 1 question during oral arguments in something like 10 years. For context: Justice Thomas has explained that's because, based on his experience as a lawyer prior to being a judge, he always found it irritating when a judge would interrupt the lawyer, interfering with their ability to present their arguments in a linear fashion. The oral arguments are also a lot less significant than people think. When justices ask questions, they're used more for signaling than anything else, because they're already briefed on the case beforehand.
  - SilasX 8y ago
    That doesn't sound like a good reason. Linear, polished presentations of arguments are for briefs. Oral arguments are for probing the cracks in the rhetorical armor. One should not be using the limited time to help a lawyer recite what's on a page.
    - chimeracoder 8y ago
      > Oral arguments are for probing the cracks in the rhetorical armor. They're not, and as pointed out below, even Rehnquist stated as much. For SCOTUS, oral arguments are a formality. That doesn't mean they're not valuable, but their value comes from formalizing the arguments for thr record, because by that point, most of the interrogation (both literal and figurative) of the arguments has already been done.
      - deleted 8y ago
        [deleted]
      - wahern 8y ago
        The OP misrepresents Rehnquist's opinion. See my reply with quote and citation.
- snarf21 8y ago
  Ugh, I hated that opinion. I was rooting for you guys and the cable argument was BS. I have always wondered about the tech you guys have/had and if you could turn your experience into a antenna/DVR that is intended to fit in a Morphie sized case. Everyone loves streaming but getting a lot of the shows OTA instead of paying Hulu or live events seems like an interesting case. Quite possible you have issues getting the antenna that small but still usable, but anyway...
  - kevincennis 8y ago
    I still have a handful of the antennas in a closet somewhere. They really were about the size of a dime. A bunch of us started a new company called Starry after the Aereo decision, and we're still doing some crazy RF stuff (although this time around, it's as a WISP rather than TV).
    - snarf21 8y ago
      Cool! I'm not in Boston anymore but best of luck on the new project.
rayiner 8y ago
> 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-reno-v-aclu-et-al https://www.aclu.org/legal-document/supreme-court-decision-r.... 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-long-the-4th-amendment-and-the-mosaic-theory http://lawandlibertyblog.com/nyujll/2014/6/3/how-long-is-too... ("Proponents of the mosaic theory argue that at some point enough individual data collections, compiled and analyzed together, become a Fourth Amendment search.").
tdhz77 8y ago
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.
- Jun8 8y ago
  Agreed! In fact, even a cursory visit to the SCOTUS page clearly shows that whoever runs it is no luddite: not only you can get scanned transcripts of cases reaching back to 80s, you can stream audio from arguments back to 2010!
- mark212 8y ago
  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 8y ago
    UI is ugly, I’m porting it to react. We are speeding up dev time. I hope to fix your frustrations!
    - tropo 8y ago
      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.
jedanbik 8y ago
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 8y ago
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.

57 points by sprucely 8y ago

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.

kevincennis 8y ago

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.

Zanta 8y ago
Justice Thomas also broke a multi-year streak of silence to make fun of his alma mater, Yale. Playing the long game.
- User23 8y ago
  This is because oral arguments don't actually matter. Chief Justice Rehnquist makes this abundantly clear in his wonderful book The Supreme Court.
  - erric 8y ago
    If they don’t actually matter, why have them? Edit: some info presented further down
  - wahern 8y ago
    Maybe you're misremembering? This is what Chief Justice Rehnquist said, Speaking for myself, I think it does make a difference: In a significant minority of the cases in which I have heard oral argument, I have left the bench feeling differently about a case than I did when I came on the bench. The change is seldom a full one-hundred-and-eighty-degree swing, and I find that it is most likely to occur in cases involving areas of law with which I am least familiar. -- Rehnquist, William H.. The Supreme Court (Kindle Locations 4154-4157).[1] Especially as politics and the law has become more partisan (ideologically if not according to party), of course oral argument will be less likely to change the ultimate judgment. But in a caselaw system as ours reasoning is nearly as important, and sometimes more important, than the particular judgment. Just look at the way the Federal Arbitration Act jurisprudence has played out. The most recent decisions are utterly divorced from the text and history of the relevant legislation and only make sense if you track the chain of reasoning in the preceding caselaw. [1] I found that citation elsewhere and bought the Kindle book for the actual text. The original citation I found cited to page 243 of the print edition.
rayiner 8y ago
Note that the article takes Breyer's question about phonograph record stores way out of context: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2013/13-461_97l5.pdf https://www.supremecourt.gov/oral_arguments/argument_transcr... (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/supreme_court_preview/briefs-v3/13-461_pet_amcu_profs-psm-dn.authcheckdam.pdf https://www.americanbar.org/content/dam/aba/publications/sup... (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 8y ago
  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 8y ago
    I think you are correct: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2013/13-132_bp7c.pdf https://www.supremecourt.gov/oral_arguments/argument_transcr.... 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.
chimeracoder 8y ago
> Another fun fact: Clarence Thomas has only asked 1 question during oral arguments in something like 10 years. For context: Justice Thomas has explained that's because, based on his experience as a lawyer prior to being a judge, he always found it irritating when a judge would interrupt the lawyer, interfering with their ability to present their arguments in a linear fashion. The oral arguments are also a lot less significant than people think. When justices ask questions, they're used more for signaling than anything else, because they're already briefed on the case beforehand.
- SilasX 8y ago
  That doesn't sound like a good reason. Linear, polished presentations of arguments are for briefs. Oral arguments are for probing the cracks in the rhetorical armor. One should not be using the limited time to help a lawyer recite what's on a page.
  - chimeracoder 8y ago
    > Oral arguments are for probing the cracks in the rhetorical armor. They're not, and as pointed out below, even Rehnquist stated as much. For SCOTUS, oral arguments are a formality. That doesn't mean they're not valuable, but their value comes from formalizing the arguments for thr record, because by that point, most of the interrogation (both literal and figurative) of the arguments has already been done.
    - deleted 8y ago
      [deleted]
    - wahern 8y ago
      The OP misrepresents Rehnquist's opinion. See my reply with quote and citation.
snarf21 8y ago
Ugh, I hated that opinion. I was rooting for you guys and the cable argument was BS. I have always wondered about the tech you guys have/had and if you could turn your experience into a antenna/DVR that is intended to fit in a Morphie sized case. Everyone loves streaming but getting a lot of the shows OTA instead of paying Hulu or live events seems like an interesting case. Quite possible you have issues getting the antenna that small but still usable, but anyway...
- kevincennis 8y ago
  I still have a handful of the antennas in a closet somewhere. They really were about the size of a dime. A bunch of us started a new company called Starry after the Aereo decision, and we're still doing some crazy RF stuff (although this time around, it's as a WISP rather than TV).
  - snarf21 8y ago
    Cool! I'm not in Boston anymore but best of luck on the new project.

rayiner 8y ago

> 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-reno-v-aclu-et-al https://www.aclu.org/legal-document/supreme-court-decision-r.... 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-long-the-4th-amendment-and-the-mosaic-theory http://lawandlibertyblog.com/nyujll/2014/6/3/how-long-is-too... ("Proponents of the mosaic theory argue that at some point enough individual data collections, compiled and analyzed together, become a Fourth Amendment search.").

tdhz77 8y ago

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.

Jun8 8y ago
Agreed! In fact, even a cursory visit to the SCOTUS page clearly shows that whoever runs it is no luddite: not only you can get scanned transcripts of cases reaching back to 80s, you can stream audio from arguments back to 2010!
mark212 8y ago
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 8y ago
  UI is ugly, I’m porting it to react. We are speeding up dev time. I hope to fix your frustrations!
  - tropo 8y ago
    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.

jedanbik 8y ago

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 8y ago

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.