The New York Times reported yesterday that some of the Supreme Court justices are not very tech savvy. Speaking in Providence, RI, Justice Kagan, the youngest justice stated, "The justices are not necessarily the most technologically sophisticatedpeople." She said that while the law clerks email each other, "The court hasn't really 'gotten to' email." As far as the method of communication on the Court, apparently it has stood still in time. As the Times article noted:
Kagan, at age 53 the youngest and most recently appointed justice, said communication among the justices is the same as when she clerked for the late Thurgood Marshall in 1987.
Justice write memos printed out on paper that looks like it came from the 19th century, she said. The memos are then walked around the building by someone called a "chambers aide."
People, we're talking about email here that some of the justices have not mastered. This would be funny except that the Supreme Court in the last few years has had to decide a number of cases involving technology and many are Fourth Amendment cases about privacy and surveillance. For example, in 2010, the Supreme Court decided a case about an LAPD officer who was using his department issued pager to send and receive sexting messages. How do you explain sexting to justices who don't even know how to use email? In that the case was Court set new parameters of the level of privacy one is expected to have in personal communications in the workplace.
Similarly, in 2012, the Supreme Court issued a ruling of the ability of law enforcement to place a GPS device on the bottom of a suspect's car to track them for weeks without a warrant.
At the Rhode Island event Justice Kagan was speaking at, naturally the moderator asked Kagan whether the justices were equipped to hear the many more privacy and government surveillance cases involving technology that would inevitably be coming their way. Kagan said, "I think we're going to have to be doing a lot of thinking about that," she said. She added that the Justices often turn to their much younger law clerks to explain technology to them.
But will their younger clerks be able to explain the complex and sophisticated technologies we now know thanks to Snoweden's disclosures that the government uses to watch us? Devices that attach to telecommunications companies central servers that collect metadata, algorithims that determine with "51 percent confienence" someone's "foreigness", technology that allows one to use your powered off cell phone to listen to your nearby conversations., Toto, we're not on Kansas anymore. We're way beyond email. Are the Supreme Court justices, or FISA Court judges for that matter equipped to decide these types of cases?
One might be tempted to conclude that this is a problem that arises from the life tenure of the justices, a practice that many have argued has outlived its usefulness, especially if you consider the life expectancy of men at the time the Constitution was written and ratified. 45? 50?
I contend that this is less of an issue of life tenure and age and more about the limited and very narrow training of persons selected for the Supreme Court. Law school has not one course in statistics or economics, much less science and technology, yet the 9 men and women of the Court are charged with deciding complex patent cases, technology cases like those cited, and essentially be experts in fields of all kinds--fields that they have had no training in but where they make policy that binds the entire nation. It is certainly possible that an engineering or math major went on to get a law degree, but I see none of them on the Supreme Court.