New legislation offers the possibility of free and searchable access to court records. But there are other systemic issues within the judiciary that still hinder transparency.
In Federalist No. 62, James Madison wrote, “It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”
Today’s problem is not that the laws themselves are unknowable, but that the entire corpus adjudicating and interpreting them is beyond the reach of Americans with average time and resources, and even the lawyers responsible for shaping them. Whether it be a court order restricting access to abortion drugs, upholding a state’s election map, or blocking national immigration policies, it takes effort and money—that adds up considerably over time—to read federal court documents.
However, a new bipartisan bill introduced by senators John Kennedy and Ron Wyden of Louisiana and Oregon, respectively, could be the most promising attempt in years to overhaul the Public Access to Court Electronic Records system, the online federal court database known as PACER. (Editor’s note: for clarity purposes, we’re using PACER and CM/ECF interchangeably because it’s a pedantic distinction for most of the public.) On June 2, the senators issued a joint press release announcing the Open Courts Act, which they plan to present to the Senate Judiciary Committee.
If enacted, the bill could radically transform public access to court records. The bill proposes ending PACER’s paywall, allowing Americans to access millions of documents that currently accrue fees for every single page accessed. It would also modernize PACER’s website and searchability, which are so antiquated that they appear a product of the early internet age, a relic in an era increasingly shaped by artificial intelligence.