When it comes to transparency, Supreme Court's Web site is dark

Future oral argument recordings and briefs by Sonia Sotomayor will not be on the Court's Web site. Pablo Martinez Monsivais/AP

The public had ample opportunity to parse the words of Justice Sonia Sotomayor on Senate Web sites before she was confirmed on Thursday, but when she begins hearing cases from the nation's top bench in September, the Supreme Court Web site will not provide the same level of accessibility.

The Court's Web site does not contain much information about its day-to-day business, including oral argument recordings and briefs, partly because it views proceedings as ancillary to making final decisions, say legal specialists.

"The Supreme Court just doesn't have the tradition" of the Government Printing Office, the executive branch's publishing arm, said Thomas Goldstein, who helps lead the Supreme Court practice at law firm Akin Gump and is the primary contributor to SCOTUSblog . "It's always viewed its job in publishing information [as simply] putting out its decisions. The oral arguments aren't binding. The thing that matters for them is their decisions."

To find searchable and comprehensive databases of Court documents, the public must consult unofficial Web sites such as SCOTUSblog, Thomson Reuters' free legal information service Findlaw and its paid-subscriber service Westlaw.

"Anybody can get whatever they need to know about the Supreme Court and get it for free and get it pretty efficiently [elsewhere]," Goldstein said. SCOTUSblog provides commentary on the Court's selection of cases and decisions.

But some legal scholars and open government groups said the Supreme Court has the obligation to publish online. Currently, only electronic copies of opinions dating back to 1991 are available on the Court's site. But they are listed by case book volume, and the opinions are not in a searchable database.

The Sunlight Foundation recently created a mock redesign of the site and recommended the Court upload briefs filed by the opposing parties. The site does not provide direct access to merit briefs. Instead, it links to a free American Bar Association site that warehouses the merit briefs, which are the parties' explanations of the legal issues at stake in a case.

Most of the thousands of petitions filed every year requesting the Court to hear a case never go before the bench -- or online for the public to see. Petitions for a writ of certiorari with the Supreme Court -- briefs that request justices review a lower court's decision -- are not posted on the site. Of the 8,517 petitions filed in the Court's 2005-06 term, only 78 were granted argument, according to a 2009 empirical analysis of certiorari petition procedures in the George Mason Law Review .

Many of the approximate 8,000 certiorari petitions submitted annually do not exist in electronic form, Supreme Court officials said. Court rules only require digital copies of briefs that justices agree to review. Entries on SCOTUSblog often provide links to petitions, but the copies are obtained through lawyers working on the cases, not the court, Goldstein said.

To be sure, the Supreme Court's Web site has undergone enhancements. In October 2006, the site began providing free access to transcripts of oral arguments on the same day the arguments were heard by the Court. Still, contemporaneous audio recordings of arguments are not available on the site.

Uploading audio recordings daily would not be expensive or time-intensive, Goldstein said. However, it could cost many hundreds of thousands of dollars were the Court to post the thousands of certiorari briefs filed each year, he added. "That's not to say the Supreme Court site couldn't be improved," Goldstein said.

GPO has maintained the Court's Web site for about a decade. But in April, the Court testified before a House Appropriations subcommittee that it take over the job to expand the data and services offered. "The Court's current Web site at GPO . . . is outdated and must be upgraded to more current technology (both hardware and software) regardless of whether it remains at GPO or is brought into the Court," the written testimony states.

Court officials requested $303,000 for purchasing additional hardware, software, network components and other electronic support for the site; $418,000 to hire four full-time information technology specialists; and $78,000 for a composition specialist to prepare and post data on the site.

Court officials on Thursday said they are working on interim improvements. "In the meantime, the Court's technical staff have made considerable progress, working in-house, to design a better site with enhanced services," said Kathy Arberg, a public information officer. "Once the Web site has been moved in-house and necessary additional staff are in place, it will begin to reflect the planned improvements and upgrades."

Audio recordings of arguments typically are made available to the public through the National Archives and Records Administration at the beginning of the following term. But the Court expedites the release of audio from high-profile cases -- sometimes on the same day the argument is completed, Arberg said

Justices probably care about transparency on the Internet, but they have little motivation to meddle with tradition, some legal specialists said. "In general, agencies and legislatures have been ahead of the judiciary because they have a very good reason for wanting people to see what they are doing," such as getting elected to keep their jobs, said Thomas Bruce, research associate and director at Cornell University's Legal Information Institute. The institute, an electronic publishing outfit, houses a widely used Supreme Court collection that includes opinions since 1992, plus 600 earlier decisions deemed historically significant. It is supported by donations, staffers' consulting fees and the Cornell Law School.

Bruce said he would prefer to see the Court publish its own work to ensure access, should third-party sites go out of business or lose interest in the subject matter. "There is a stability question," he said. "There is a real problem in that the people who are in a position to promote change in the way that legal information is delivered to the public," such as lawyers, law students and professors, "tend to be well-served by the commercial public interests. So, there hasn't been a huge amount of incentive for change."