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Monday, November 30, 2009

Should anyone really care about "ex parte blogging" or editorializing?

Over on Balkinization, Eugene Fidell has a post expressing sympathy with the idea that newspapers and others should forbear from trying to influence the Supreme Court on the same day that the Court is going to hear oral arguments in a case.  Fidell seems to be persuaded by the gist of this student note in the Stanford Law Review, which raises ethical concerns with "ex parte blogging."

With no disrepect to the competent job in the student Note, I find myself boggled at the suggestion that newspapers or other writers (including legal bloggers) should abjure from weighing in on matters before the Court. After the jump, I excerpt the guts of Fidell's argument and some reactions.

Still, the spate of day-of-argument editorials stand out: because of their timing they are most clearly addressed to the Justices themselves, rather than to ordinary readers. It is as if the editorial board were submitting an amicus brief--shorter than the real thing, of course, but much later in time--indeed, so late (long after briefing has concluded) that the parties cannot respond unless perchance the editorial's perspective happened to come up in the course of the argument or in the rare case of post-argument supplemental briefing...
Does it matter that The Times and other newspapers engage in same-day editorializing on pending cases? To the extent that members of the bar are not involved, no legal ethics issue is presented. Even if a lawyer were involved, as Comment [3] to Rule 3.6 of the ABA Model Rules of Professional conduct notes, "the public value of informed commentary is great and the likelihood of prejudice to a proceeding by the commentary of a lawyer who is not involved in the proceeding is small. . . ." But even without lawyer participation, the practice implies that the newspaper has influence over the disposition of particular cases and not merely in the court of public opinion. This implication, however subtle and whether or not justified, does not foster public confidence in the administration of justice...
As a friendly observer, my vote would be that newspapers resist the temptation to editorialize on pending appeals on the very day of argument. If a newspaper or other news outlet wishes to influence the outcome, let it do so the old-fashioned way: by hiring counsel and filing a brief like a true amicus curiae. And if it disagrees with the outcome of a case, let it editorialize about the need for corrective legislation or the importance of selecting Justices of a particular bent. But let's allow the Justices a modest and journalistically self-imposed cone of editorial silence on argument days. Journalism and public understanding won't be harmed a bit, and we'll have taken a small step toward underscoring the integrity of the adversary system and what distinguishes the judicial process from other important forms of public decision making in our society.

I'm singularly unpersuaded by the arguments here, but I'm having trouble articulating why--feel free to weigh in with other reasons in the comments. It might be that I don't really accept the gist of limits on ex parte communications... but it is more likely the fact that a blog post (of the sort written or linked to via Scotusblog) or an editorial is a cheap way to get informed commentary out there and that the costs of regulation are likely to exceed any of its benefits. Indeed, informed observers (say, the musings on blogs by legal academics) are not necessarily going to be inclined to file an amicus brief in all cases where such expertise or information would be valuable. It might also be the case that the wealthy and powerful are more likely going to succeed in gathering amicus support than the poor and less powerful; thus if there is a perspective to be shared that might end up being helpful to supporting the "downtrodden" or less popular, I wonder if that's a reason to prefer fewer restrictions (whether based on legal norms, or just social ones).

In any event, less boggling is that Fidell wrote this blog post about the student note.  As the Note reports, it was Fidell who passed on to his wife, Linda Greenhouse, former Scotus reporter for the Times, the tip from a blogger that the Court muffed its survey of American law in the Kennedy v. Louisiana case.  

P.S. Out of disclosure, I should add that I've met Fidell and Greenhouse a couple times through DC lawyer and social circles, but I doubt they could pick me out of a lineup...

Posted by Administrators on November 30, 2009 at 12:03 AM in Article Spotlight, Blogging, Current Affairs, Dan Markel | Permalink


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I find it hard to imagine . . . that the Justices care what the Times editorials have to say about a case. . . .

This is particularly true because NYT editorials about the Supreme Court are so predictable that no one need wait until the morning of argument to know exactly what they will say.

Posted by: Orin Kerr | Nov 30, 2009 2:04:42 PM

Dan, there are just too many ways to count. In addition to Howard's points, it is hard to fathom that public confidence in the justice system will be at risk if the Times issues editorials on the day of oral argument but not if the paper (or its correspondents) attempt to issue marching orders for the whole Term in advance. Furthermore, Fidell neglects that an equally evident reason why the Times might editorialize on oral argument days, one having nothing to do with any implied claim of influence, is that it's the day when the most readers will actually be aware of the case.

My primary objection, though, is that this is the kind of post that takes both the courts and newspaper editorials far too seriously. This kind of inflationary view, which flatters both the courts and the major press even as it sermonizes them, has never done either institution much good. In particular, Fidell assumes something that I think is increasingly antiquated and was never well justified in the first place: that anyone either reads editorials in the Times or elsewhere anymore, or has much reason to care much at all about them. However true it might have been, I find it hard to imagine either that the Justices care what the Times editorials have to say about a case or, even more so, that there is a public out there that thinks about whether the Justices are influenced by Times editorials.

Posted by: Paul Horwitz | Nov 29, 2009 10:48:35 PM

Perhaps because, at least for academics, blogging is some form of quickie scholarship. And if it would be silly to suggest that an article urging particular resolution in a forthcoming case (say, a short essay in an on-line supplement) should not be published on the day of the argument, then it is silly to make the same argument about a blog post.

There also is a technological silliness to the argument. Only game-day editorials or posts are inappropriate, but not posts a day or two before. So for a Tuesday argument, a Monday post would be OK but not a Tuesday post, even though the Monday post remains just as available on Tuesday.

Posted by: Howard Wasserman | Nov 29, 2009 10:10:20 PM

Perhaps because the idea that any game-day blog post (or newspaper editorial) could actually influence the Court on is laughable?

Posted by: James Grimmelmann | Nov 29, 2009 9:23:15 PM

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