Volume 100

Standing in the Way of the Internet Revolution

by Kenneth Jost

The Internet has transformed news coverage of and commentary about the judiciary—up to and including the Supreme Court—but the transformation is incomplete. The Supreme Court and the Federal Judiciary still resist the technological innovations that could give Americans front-row seats, in their living rooms or at their computer desks, to watch the court system in real life and real time.

When I was editor of the legal newspaper The Los Angeles Daily Journal in the 1980s, we covered the U.S. Supreme Court with a system that would have made Rube Goldberg shake his head. With no Washington correspondent, we hired a messenger to pick up decisions at the court when released and fax them to my reporter in Los Angeles.

Fax machines at the time were glacially slow, but the three-hour time difference allowed my reporter to get the opinions—however many and however long—soon enough to read and digest them, work the phones for comment, and get her story in by mid-afternoon.

Today, thanks to the Internet, I can get opinions from the Supreme Court at my desk almost as soon as they are announced in the courtroom. No big deal. My office is a twenty-minute cab ride away. But I can get opinions from any number of other courts also almost as soon as they are released. And so can everybody else.

The Supreme Court posts opinions on its website, available to computer users worldwide, as the justices are announcing the decisions. Many federal and state courts do likewise. That’s how I got the recent decisions on President Obama’s health care law from federal appeals courts in, respectively, Cincinnati and Atlanta. Or the gay marriage rulings from state supreme courts all over the country.

The public benefits from this convenience for reporters in the form of quicker and smarter coverage. I mean no disrespect to legal affairs reporters for local news organizations. That’s how I started in my hometown of Nashville, Tennessee. But a reporter who has followed the health care or gay marriage litigation from the start may write a better story or analysis than the local. Conversely, the local court reporter can do a better job of explaining the impact of a Supreme Court decision with the opinion in hand, not just a wire service story, as I had to do back in Nashville.

It’s not just opinions, of course. A court can put just about anything on its website: docket information, briefs, transcripts, even audiotapes or videotapes of court sessions. That’s how I covered the arguments in real time in the Proposition 8 case before the California Supreme Court. And a court can use the Internet to send e-mail notices of proceedings. That’s how a long list-serve of reporters, commentators, and court-watchers keeps up on every development in the new Proposition 8 case in federal court.

This is all so wonderful that one would expect every court in the land to make maximum use of this technology. Wrong. The Supreme Court remains dead set against televising proceedings. The Federal Judiciary is only a few millimeters farther along. The Judicial Conference approved a voluntary pilot program last year (September 14) for a limited number of district courts to permit video coverage of civil cases—but only with the permission of both parties.

Only two weeks later, the Supreme Court actually took a step backward. Starting with Bush v. Gore in 2000, the Court had adopted a practice of releasing audiotapes of arguments in major cases immediately after the sessions were over. Over time, however, the justices had second thoughts about the hassle of selecting important cases for this special treatment. So they decided September 28 to make audiotapes of all arguments available on the court’s web site, but only at the end of the week. Yes, the tapes are now readily available to anyone interested, days after the event. But for news coverage on radio or TV, the delay is fatal.

The justices and their federal judge colleagues resist because many like their anonymity, worry about grandstanding, and fear a loss of confidence once the public sees that they put their robes on one sleeve at a time. But transparency could equally benefit the court system while educating the public.

One concrete example makes the point. Sometime soon, Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 terrorist attacks, will go on trial before a military tribunal in Guantanamo Bay, Cuba. Courtroom capacity is limited, and few reporters, experts, or observers can afford the time or expense to go for the trial.

The military commissions have been very controversial. Human rights advocates, not to mention millions of Muslims in this country and around the world, doubt that KSM can possibly receive a fair trial. Perhaps he will. But to prove it, greater transparency is needed.

As Brookings Institution expert Benjamin Wittes suggests, the Pentagon’s Office of Military Commissions could do a better job of posting briefs, transcripts, and so forth on its web site in real time. More significantly, Wittes suggests the proceedings be videocast in real time, at least via closed circuit, to select sites around the country.

Wittes would actually let C-SPAN cover the trial, but the military justice manual appears to bar that possibility. Closed-circuit presentation, however, would be “a big breakthrough,” he says, giving legitimacy, if deserved, to what looks to many like a second-class justice system.

The Supreme Court rebuffed even that degree of openness when the federal judge hearing the challenge to California’s anti-gay-marriage Proposition 8 wanted to stream the trial proceedings to select U.S. courthouses around the country. By a 5-4 vote along conservative–liberal lines, the Court in January 2010 ruled that Judge Vaughn Walker had not followed proper procedures in revising local court rules to permit the closed-circuit videocast.

Camera-shy justices ought to get over their problem. At the least they ought not stifle moves toward openness by judges in lower federal courts. Lady Justice may wear a blindfold, but she ought not blindfold a public that is entitled to hear and see what goes on its court system, taking full advantage of the Internet-age technology.

Kenneth Jost, editor-in-chief of The Georgetown Law Journal, Vol. 69, is Supreme Court editor for CQ Press and author of the annual series The Supreme Court Yearbook and the one-volume encyclopedia Supreme Court From A to Z. He blogs at Jost on Justice.