A few years ago, US Supreme Court Justice Elena Kagan revealed that her fellow justices on the High Court were not technologically savvy. They didn't really understand Facebook and Twitter, she said, and they still communicated with each other by writing memos on heavy ivory paper delivered by an aide.
"The court hasn't really 'gotten to' email," Kagan said during a conversation with Ted Widmer, a former speechwriter and librarian at Brown University. She suggested that because the justices are old, they had a difficult time grasping new technology. (Before Justice Antonin Scalia's death this past February, the average age of Supreme Court justices was just over 64.)
Kagan's admission made headlines and attracted serious concern among tech activists because, as Freedom of the Press executive director Trevor Timm noted in a Guardian column, "the future of technology and privacy law will undoubtedly be written over the next few years" by the Supreme Court.
"This lack of basic understanding [of technology] is alarming, because the Supreme Court is really the only branch of power poised to confront one of the great challenges of our time: catching up our laws to the pace of innovation, defending our privacy against the sprint of surveillance," Timm wrote. "So the future of our privacy, of our technology — these problems land at the feet of a handful of tech-unsavvy [justices]. Future nominees to the bench should be quizzed on their knowledge of technology at confirmation hearings."
Until Kagan made the disclosure, it was unknown if any of the justices had email or used email. But it turns out that Kagan and at least one other Supreme Court justice do use email, which means they may not be as technologically challenged as she had suggested.
VICE News obtained a couple of innocuous emails Kagan and Justice Sonia Sotomayor exchanged in 2010 and 2013 with Solicitors General at the Department of Justice [pdf at the end of this story]. The emails show that Supreme Court justices are provided with official .gov email addresses.
It's the first time High Court justices' emails have ever been released, and the first disclosure that Solicitors General have had private communications with justices while the US government had cases before the Supreme Court.
The emails were turned over in response to a Freedom of Information Act (FOIA) lawsuit VICE News filed against the Department of Justice (DOJ). We asked the department for any emails sent by current or former Solicitors General to any members of the Supreme Court. The Solicitor General represents the US government in major cases argued before the Court. The Supreme Court itself is not subject to the FOIA.
As FOIA attorney Jeffrey Light noted in our complaint, "The United States is involved in approximately two-thirds of all the cases the US Supreme Court decides on the merits each year," and "little is known publicly about communications between the Solicitor General's office and individual Supreme Court justices.
"Even less is known about electronic communications between the Solicitor General and individual Supreme Court justices. Indeed, it is not even publicly known whether any of the justices presently have official email addresses…. The nature and existence of communications, or lack thereof, between the Solicitor General and Supreme Court justices is a matter of great public importance."
'If you can accept the concept of civilian control of the military, you should accept the concept of smart legal minds deciding technology issues.'
After a yearlong search, the DOJ said it found only three emails. The department alerted the Supreme Court that the emails would be released.
One email dated November 11, 2013 shows Solicitor General Donald Verrilli, Jr., who recently stepped down after five years on the job, responding to Sotomayor about law clerk applicants she inquired about.
Another email, dated December 9, 2010 — about three years before Kagan said the Court had not "gotten to" email — from former Solicitor General Neal Katyal to Kagan, requested her input about where to hang her portrait in the conference room of the Office of Solicitor General. (Kagan herself served as Solicitor General in 2009 before President Barack Obama nominated her that year to replace Justice John Paul Stevens on the Court. Katyal succeeded Kagan as Solicitor General.)
"I have a question: I am going to hang your portrait tomorrow in our conference room, and I was wondering if you have a particular preference on layout," Katyal wrote. "I was thinking of the three senior on top, and then you in a separate, lower, with Justice Marshall (so 3, and then 2). But I wanted to see if you thought was OK. I've enclosed a picture of the current layout (4, in 1 row)."
Kagan's response was withheld because the Justice Department said it was not considered an "agency record" subject to the provisions of the FOIA. But she did weigh in; Katyal replied to Kagan saying, "Great, thanks on the picture. We'll get it hung."
A spokesperson for the Supreme Court did not respond to requests for comment about whether the other six current justices use government email.
Washington, DC Superior Court Judge Herbert Dixon, who writes a tech column for The Judges' Journal, told VICE News that he "suspected all along" that there was "some use of email by some of the justices."
"I would have been extremely surprised if they never used email," he said.
Dixon said the concerns among technology advocates that the justices will issue poor legal rulings governing online privacy and surveillance reform because they don't understand how social media works and have not kept up with changes in technology is misguided.
"It does not bother me that we don't have technology enthusiasts on the Supreme Court," Dixon said. "The justices have the best advocates who can explain concepts to them…. If you can accept the concept of civilian control of the military, then you should accept the concept of very smart legal minds being able to decide technology issues."
To underscore his point, Dixon cited Riley v. California, in which the High Court ruled in 2013 that the police generally cannot search without a warrant the cellphones of Americans who have been arrested. The ruling was a big win for privacy rights in the digital age.
"Regardless of what they did not know when they started out with the case, they came out with a well-informed decision," Dixon said. "It's clear they got it."
Follow Jason Leopold on Twitter: @JasonLeopold