A Plea for a Tech-Savvy Justice

The United States Supreme Court is, when it comes to technology, almost completely ignorant.

Not exactly a news flash, I know. After all, much was made in the days of Justice Sonia Sotomayor's nomination process about her high level of tech-savvy as compared to her predecessor, Justice Souter, whom Popular Science called a "famous Luddite." But before reading a post on the DC Dicta blog on Monday, I'd always sort of thought that SCOTUS's collective ignorance of common tech was limited to the visibly ancient Justices, like the retiring John Paul Stevens.

Not so, sadly. Judging from the expertise the Court displayed during oral arguments for City of Ontario v. Quon, the majority of the Court appears to be but mewling infants when it comes to technology. From the DC Dicta account:

At one point, Justice Anthony Kennedy asked what would happen if a text message was sent to an officer at the same time he was sending one to someone else.

“Does it say: ‘Your call is important to us, and we will get back to you?’” Kennedy asked.

Justice Antonin Scalia wrangled a bit with the idea of a service provider.

“You mean (the text) doesn’t go right to me?” he asked.

Then he asked whether they can be printed out in hard copy.

“Could Quon print these spicy little conversations and send them to his buddies?” Scalia asked.

As the Wall Street Journal Law Blog commented: "(Cue sound of hard slap against forehead.)"

I'm not that surprised that Justice Kennedy isn't tech-savvy. But I'm a bit surprised by Justice Scalia being so poorly informed. I would have thought that someone so wedded to textualism and originalism would be fairly keen on understanding ahead of time the terms that were being thrown about in a case as technology-intensive as Quon, which is about a SWAT member's expectation of privacy regarding text messages sent on an official pager. Still, Justice Scalia has been ensconced in the judiciary since 1982, so it's understandable that he's been cocooned from technological advances. As I've been informed by U.S. District Court Judge William Young, who teaches one of my classes at Boston University, the American courts are not quick to embrace cutting edge—or even blunt, dull edge—technology.

Nonetheless, I was quite shocked by the technological naiveté of Chief Justice Roberts.  Quoth DC Dicta:

The first sign was about midway through the argument, when Chief Justice John G. Roberts, Jr. - who is known to write out his opinions in long hand with pen and paper instead of a computer - asked what the difference was “between email and a pager?”

What's the difference between email and a pager? Seriously? I hope that this quote is out of context, and that Justice Roberts was making a valid, probing distinction, because otherwise this is just sad. I mean, Justice Roberts isn't that old!  For Pete's sake, he was a partner at Hogan & Hartson just ten years ago! Surely they provided him with both email and a pager—does he really not know the difference?

Now, despite my snarkiness, I do not mean to belittle the Justices. Nor do I mean to pick on the conservative end of the court—I suspect Breyer and Ginsburg are even less savvy than those quoted above. Besides, having now spent some time both in the tech-y world (five years in IT and three years in web work, for the record) and in the legal world, I am well aware that my technical knowledge surpasses that of the vast majority of legal practitioners, and it's unreasonable to hold them to such a standard. (Indeed, the DC Dicta post also notes that one of the attorneys before the court appeared just as ill-informed tech-wise.) And such knowledge is not required—lawyers and judges have expert witnesses to help them understand difficult cases involving science and technology.

But still, the technological ignorance of the Supreme Court is a concern, particularly as they try to resolve cases like Quon and a possible appeal of Comcast v. FCC, which involves the FCC's authority to enforce net neutrality. These are not cases that deal with arcane bits of science and technology that will only affect the odd company or citizen. Rather, they are cases that will touch every member of wired society, and while that society does not contain many judges, it does contain practically every U.S. citizen under the age of 30. It is unacceptable for the Supreme Court to saddle literally an entire generation with bad law because it can't grasp even the basic concepts of the technology that that generation uses on a daily basis.

What the Supreme Court needs is an infusion of basic tech-savvy. Not a Steve Jobs or Bill Gates, of course, but someone who's familiar with how modern society uses common technology like email, mobile phones, and the like. Fortunately, just that opportunity has presented itself with the retirement of Justice Stevens. When it comes time to vet candidates (or review the already existing list, as the case may be), President Obama, a tech-savvy fellow himself, should take note of the tech literacy of each possible future Justice. Do they use email? Own a smart phone?  Understand the concept of a service provider? 

Obviously, these are not make-or-break questions. But they do serve as hints as to whether the potential Justice can knowledgeably address the technologically rooted issues that the Supreme Court is now facing (and will continue to face). And such a Justice could help create a tech-savvy block on the court—certainly, Justice Sotomayor is up on such things, and the DC Dicta blog makes it sound like Alito might be as well. If a full third of the court can tell the difference between an email and a pager, maybe netizens won't have to collectively facepalm after Supreme Court decisions are made.

. . .

Oh all right, we probably still will.  But it'd be a step in the right direction.

(Arthur Bright is a third-year law student at the Boston University School of Law and a former CMLP Legal Intern. Before attending law school, Arthur was the online news editor at The Christian Science Monitor.)