The Supreme Court Needs To Pick Up The PACER

The Supreme Court is in recess, so it seems like a good time to raise a boring but important point of judicial administration: the need for public access to court filings.

I think that everyone whose work involves the Court—and there are a lot of us—has at one time or another struggled to understand why the Court doesn’t have a system like PACER. For those who don’t know, PACER has for many years allowed the public to access filings made in the federal district courts and courts of appeals. True, PACER is imperfect in many ways, including because it charges fees for most services. Still, PACER is clearly much better than nothing. Yet no such system exists in the highest court in the land.

Acting where the Court has not, organizations like SCOTUSBlog and the ABA have done a great job of trying to provide public access to key Court documents–and at no charge. But why should the Court effectively outsource this work? Making court filings public is critical to transparency and accountability and so is part of the Court’s mission. In any event, existing websites don’t (and, realistically, can’t) supply all filed documents, such as applications for stays. For example, the Court recently divided 5-4 over an eleventh-hour request to stay an execution–yet the Court’s two-sentence order was unaccompanied by the filings in that case, making it difficult to ascertain the claim that had been so narrowly denied. And even when existing websites  supply these documents, there is often a significant delay that prevents timely public debate.

The Court has made great technological strides in recent years. It has made oral argument transcripts and audio files available much more quickly, for example. The Court’s rules now require that key paper filings be served electronically on opposing parties. And the Court’s recent unanimous decision in Riley v. California exhibited a reassuring familiarity with modern technologies that didn’t exist even ten years ago. The Court should build on these recent achievements to leapfrog PACER and supply free public access to all filings (with appropriate exceptions, such as for materials under seal, of course). The Court should become a leader in promoting judicial transparency, rather than remaining woefully far behind.

At a time when almost every other federal court has a readily accessible electronic database, why can’t the Supreme Court?

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