Supreme Court Website Reboot Could Signal More Transparency

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By Kimberly Strawbridge Robinson

The roll out of the U.S. Supreme Court’s new website is part of “improvement at the margins” for transparency at the high court, according to a July 31 report by Fix the Court.

The website updates currently incorporate small usability changes. More significantly, though, the website is intended to “support future digitization,” the Supreme Court’s Public Information Office said July 24.

It’s unclear what “future digitization” means, the Fix the Court report said. But it could refer to live audio of oral arguments and opinion announcements, or even faster release of the justices’ financial disclosures, it said.

Indeed, in both of those areas, the Supreme Court took small steps during its 2016 term to address concerns over its transparency, Fix the Court, a nonprofit focusing on increased transparency at the high court, said.

Then again, the “digitization” could refer to the court’s planned electronic filing system, which Chief Justice John G. Roberts Jr. described in his 2014 end-of-the-year report. Currently, Supreme Court filings, such as petitions and briefs, aren’t available on the website.

In the 2014 report, Roberts said that the filing system could be operational as soon as 2016, but the electronic filing system wasn’t part of this website update.

The court should take steps to increase its transparency, “but it should do so carefully and cautiously,” Nancy S. Marder, a law professor at Chicago-Kent College of Law, told Bloomberg BNA in an Aug. 8 email.

The Supreme Court is already a fairly transparent institution, and the justices should be allowed to “exercise their discretion in ways that safeguard the reputation of the Court,” Marder, who has written on Supreme Court transparency, said.

Link Rot

The new website, which was launched July 28, has “a more consistent menu structure, a more interactive calendar, faster access through Quick Links, improved page load times, and reduced page scrolling,” the court’s press office said.

It includes a section, entitled Internet Sources Cited in Opinions, intended to combat “link rot,” that is, when internet sources become permanently unavailable.

The website now links to every internet source cited in a Supreme Court opinion from the court’s 2005 term to the 2016 term.

“Because some URLs cited in the court’s opinions may change over time or disappear altogether, an attempt is made to capture, as closely as possible, the material cited in an opinion at the time of its release,” the website says.

IT Improvements?

The more exciting feature for transparency advocates, though, is the site’s ability to support “future digitization.” Unfortunately, the press office didn’t explain what further digitization is planned.

The court’s budget earmarks $1.5 million for information technology improvements, but it’s unclear how those funds will be used. Justices Anthony M. Kennedy and Stephen G. Breyer hashed out the court’s 2017 budget in a meeting with a House appropriations subcommittee that was closed to the press and the public, the report said.

One possibility is that the court will use it to support live audio of oral arguments and opinion announcements, the report said.

Currently, the court releases audio at the end of the week, with only a rough transcript posted the same day as the argument. Occasionally, however, the court will release same-day audio for major cases, like the 2015 same-sex marriage case, Obergefell v. Hodges.

“Not once during the past term did the court release audio of an oral argument on the day in which a case was heard,” marking “two terms in a row with no same-day audio,” the report said.

Travel Ban

But experiences in the federal circuit courts show that the public is interested in seeing the judiciary at work.

The U.S. Courts of Appeals for the Fourth and Ninth circuits released live audio and in some cases video of their oral arguments over the legality of President Donald Trump’s travel ban, for example. The Ninth Circuit’s argument garnered more than 1.5 million listeners via the court’s YouTube channel and cable television networks like C-SPAN, the report said.

The report notes that in November the Supreme Court allowed live video from the courtroom for the first time. The court didn’t stream an argument, but rather a bar meeting honoring Justice Antonin Scalia, who died in February 2016.

The live-streaming link is still up, suggesting that the “live dissemination of oral arguments and opinion announcements” could occur sometime in the future, the report said.

Stock Sales

Another possibility for the court’s IT improvements is a “justice-by-justice conflicts list,” like some state supreme courts post, the report said.

As of now, conflicts checks are done by each justice’s chambers, and are kept private. Those conflict checks have been, at times, incorrect.

Roberts “missed a stock conflict in a case argued in December but recused from Life Technologies Corp. v. Promega Corp. once the error was brought to his attention in January,” the report notes.

The justices’ financial disclosures this year revealed that they reduced their individual stock portfolios, which potentially create conflicts requiring recusal.

Roberts, Breyer and Justice Samuel A. Alito Jr.—the only three justices who own individual stocks—"sold up to $1.045 million in stocks in 2016 and reduced the number of individual securities they own to 53, compared to 60 at the end of 2015 and 76 at the end of the 2014,” the report said.

Faster Financial Disclosures

Federal courts in general improved how quickly they released judges’ required financial disclosures.

The administrative arm of the federal judiciary announced that “financial disclosure reports for federal judges, including Supreme Court justices, would be made available to the press and public via thumb drives at no charge,” the report said.

“Typically, it had taken five to seven weeks for the judges’ and justices’ financial disclosure reports,” to be released via paper copies, the report said. Requesters were also charged 20 cents per page.

Open to Public

The Supreme Court should take small steps like this toward greater transparency, so “long as the steps do not interfere with its main functions,” Marder said.

She said that the Supreme Court is already a relatively transparent institution.

Its oral arguments are “open to the press and public.” Written transcripts are made available the same day. And while the court could probably do better, audio is available at the end of the week, Marder said.

Of course, “members of the press cover the Supreme Court argument,” and many rely on them for “their quick and insightful descriptions of what happened,” she said.

“All of these ways of following oral argument are easy and accessible and provide more coverage than most of us will actually make use of,” Marder said.

“The most important way that the Court makes its work public is by publishing written opinions in which it gives reasons for its decisions,” she said.

These opinions “have become more accessible with new forms of technology,” Marder said. “It used to be that a person had to go to a law library to find the opinion in a reporter, but that is no longer the case.” Now these are available online.

There is, to be sure, room for growth, Marder said.

Same-day “audio of the oral argument would be a good step for the Court to take, unless there are reasons we don’t know about that stand in the way.” Same-day delivery of the opinion summaries announced from the bench would be similarly helpful, Marder said. Currently, the court doesn’t make those available to the public for months.

The court could also “improve the online opinions since so many people read the online version rather than the printed version.” That could include adding links and ensuring that graphics are reflected in the online version.

SCOTUS Panacea

These incremental steps, however, should only be taken if they don’t impair the working of the court, Marder said.

Transparency advocates continue “to view cameras in the courtroom as a panacea,” she said.

They wouldn’t “provide much more transparency than is already available through audio and transcript, yet cameras pose a threat to the oral argument,” she said.

Once images are available, they could “shift the focus from the legal argument to more superficial concerns such as how people appear, and their gaffes or idiosyncrasies,” Marder said. “We have a tendency to turn the visual into entertainment.”

“So, there is little to gain and much to lose by introducing cameras in the courtroom,” she said.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

For More Information

Full text of report at http://src.bna.com/re1.

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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