Earlier this year, the Supreme Court took an adventurous leap into the twentieth century. The coronavirus pandemic had made it impossible for the justices to safely hold their planned oral arguments in person in March and April. Instead, the court heard those arguments by conference call and made the live audio available to the public. For the first time in the nation’s history, Americans could listen in on the action as the justices and the opposing sides deliberated over cases in real time without having to travel to Washington, D.C., and be there in person.
The ad hoc experiment wasn’t without some minor hiccups. Some of the justices had trouble with the mute button when it was their turn to speak—a relatable experience for those who’ve worked from home for the last three months. The round-robin format also drew criticism from longtime court-watchers like Lyle Dennison, who argued that it diminished the utility of oral arguments and undermined the justices’ equal standing. Fortunately, those flaws are distinct from real-time broadcasting itself and would not affect its use during in-person arguments when they eventually resume.
Live audio’s success only came after years of resistance from the justices. That should prompt them to reconsider other unnecessary habits that set them apart from the Americans they serve. One of the most notable examples is the court’s total absence from social media. The executive and legislative branches are abundantly well represented on networks like Twitter. But the Supreme Court and other federal courts are largely absent beyond their own websites, which can be tricky to navigate for even the most experienced users.
The federal government already maintains a robust presence on Twitter. Every federal lawmaker maintains at least two accounts: a semipersonal one that’s typically used for campaign-related purposes and an official one that’s free of electioneering. Congressional Democrats and Republicans have collective accounts for their members on most of the major committees, which they use for partisan purposes. The House and Senate also maintain nonpartisan accounts, such as @USHouseHistory and @USSenateHistory, which serve an educational or historical function.
The executive branch is just as plugged in. President Donald Trump’s Twitter feed is perhaps the most famous (and least imitable) example. Beyond his unique presence, federal departments and agencies also operate hundreds of social media accounts to keep the public updated on their work. (The U.S. Consumer Product Safety Commission maintains what has become the most widely beloved such account.) Each U.S. embassy overseas has its own Twitter and Facebook accounts to interact with U.S. citizens overseas and citizens in their host countries. The National Weather Service’s various bureaus provide timely reports on Twitter even during major storms. Even the Central Intelligence Agency, which is hardly known for its transparency, regularly updates its social media accounts.
State and local governments also regularly use social media, especially in the age of Covid-19. Governors and mayors used Twitter to publish regular updates about the level of restrictions they imposed to combat the pandemic. While state legislatures generally have a less robust presence than Congress, hundreds of state lawmakers use social media to interact with their constituents and make announcements. The state of New Jersey, true to form, even operates a Twitter account dedicated to posting memes and slang-laden jokes about the state’s greatness.
Twitter’s widespread acceptance for government use in particular makes the federal judiciary’s absence all the more striking. While the courts’ administrative office maintains an account, only a smattering of federal district courts and bankruptcy courts have verified accounts themselves, some of which have only sporadic updates. The federal circuit courts of appeal have no social media presence, though the Ninth Circuit and the Eleventh Circuit use YouTube to upload videos of their oral arguments. And the Supreme Court itself only exists online at supremecourt.gov. That website, which received a long-overdue overhaul in 2017, is still largely designed with practitioners in mind instead of the general public.
What would a Supreme Court Twitter account look like? Some state courts have already provided a road map. The Florida Supreme Court’s page regularly updates its followers on the court’s business, including when briefs are filed, oral arguments are held, and opinions are handed down. Pennsylvania’s highest court offers a straightforward feed of when its orders and opinions are available. In addition to updates on arguments and decisions, the Supreme Court of Georgia also shares posts from the court’s various judges and other law-related groups.
Other countries have shown how those approaches can be scaled up to the national level. The U.K. Supreme Court, for example, has provided regular updates on its proceedings and rulings for almost a decade. The Supreme Court of Canada releases opinions on Twitter in both English and French, conforming with the country’s official policy of bilingualism. It’s not hard to imagine a U.S. Supreme Court Twitter account that would, at minimum, publish orders and opinions when they’re released, provide links to oral argument transcripts and audio recordings when they are available, and keep the public up to date about proceedings and practices.
Americans who are interested in the court’s proceedings must instead turn to other sources for updates. SCOTUSblog, an independent outlet run by lawyers and journalists, often receives tens of thousands of visitors to its live blogs when the court is expected to release major rulings. The site has become so synonymous with the court that Twitter users often direct their thoughts and feelings on the court’s rulings to the blog’s Twitter account. While SCOTUSblog does yeoman’s work in keeping the public apprised of the court’s workings, one can’t help but think that some of that work is the court’s responsibility, as well.
At least some of the justices are already familiar with social media. In 2011, Justice Stephen Breyer told a House Appropriations subcommittee that he had created an anonymous account to follow a series of protests in Iran the previous year but suggested he did not regularly use it. Justice Elena Kagan told the New York State Bar Association earlier this year that she also has an anonymous Twitter account. “I’ve never had a Facebook account, but I do lurk on Twitter,” she said during the event. “So I use a different name and I never tweet myself. But, you know it’s sort of interesting what you see sometimes.”
But as an institution, the Supreme Court is stiffly resistant to inviting the public any further into its workings. Perennial proposals to require the court to televise its oral arguments have invariably been met with stiff resistance from the justices. Former Justice David Souter told lawmakers in 1996 that “the day you see a camera come into our courtroom, it’s going to roll over my dead body.” Part of this resistance stems from concerns about misrepresenting the court’s proceedings with sound bites and misleading footage. Arrogance and elitism also play a role. Antonin Scalia once quipped that the law’s complexity “is why The University of Chicago Law Review is not sold at the 7-Eleven.”
Too much mystique can have its drawbacks, however. This isn’t the only area where federal judges have struggled to use technology in an open way. PACER, the federal courts’ electronic docket system, is supposed to provide the public with access to legal records with as few costs as possible. In recent years, it’s become a lucrative source of funding for judicial projects even as the service becomes cheaper than ever to operate and maintain. Both problems reflect a deeper cultural problem in the judiciary: viewing transparency as an obstacle to avoid rather than a principle to embrace.
I can’t really blame the courts for showing a certain amount of hesitation about social media. The internet, after all, is rarely associated with reasoned argument and sober analysis. But it also happens to be an inescapable part of the public sphere—one where millions of Americans effectively live and work, and where the hard work of democracy increasingly takes place. Public access to the courts’ workings is a basic feature of that democracy. The Supreme Court and the rest of the federal judiciary should not be afraid to bring that principle into the twenty-first century.