Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
A Stanford Law Review Note by Rachel C. Lee--Ex Parte Blogging: The Legal Ethics of Supreme Court Advocacy in the Internet Era, 61 Stanford L. Rev. 1535 (2008)--perceptively examines the ethical dimension of blogging targeted at the Supreme Court ("shadow-briefing"). Although the blogosphere is certainly more in vogue than hard-copy newspapers, Ms. Lee rightly notes the potential for abuse by members of the bar who write op-eds and stimulate well-timed news articles. Even in this era of declining newspaper readership, it is still worth asking whether conventional, internally-prepared editorials that urge the Supreme Court to rule a particular way on pending cases are also problematic, and if so, when? The practice is surprisingly common at The New York Times, but also occurs at The Washington Post, among others. A good thing? A bad thing? Does it matter? Earlier this semester, I noticed an editorial urging the Justices to take a particular action in a case that was to be argued that very day. The case concerned management fees for mutual funds. The editorial concluded with the suggestion that the Court "rule that fund advisers have a responsibility to set fees that are comparable to those they charge other customers, and what would be negotiated in a fair, arm's-length deal. It should then order the District Court to reconsider the case." I am not sure what it was about the editorial that most caught my attention--that it ran on the very day of oral argument or that it went so far as to comment not only on the merits, as one would expect, but on the precise procedural order the Court should enter. Despite my esteem for The Times, this editorial struck me as regrettable.
A newspaper, as Ms. Lee observes (at 1553), "will have its own priorities as to when it wishes to run an editorial," and, to be sure, the Times editorial page does not confine itself to commenting on the very day of argument. Its editorial advice to the Court may also come in curtain-raisers at the beginning of the Term, before certiorari has been sought or after it has been sought or granted or a case has been argued. Still, the spate of day-of-argument editorials stands 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.
In United States v. Grace, 461 U.S. 171 (1983), the Supreme Court held unconstitutional an Act of Congress that prohibited the "display [of] any flag, banner, or device designed or adapted to bring into public notice any party, organization, or movement" in the Court's building or on its grounds, including the sidewalks. The Court rejected a government effort to defend the statute on the notion that it should not appear to the public that the Court "is subject to outside influence." According to the Court's paraphrase of the government's position, '[c]ourt decisions are made on the record before them, and in accordance with the applicable law. The views of the parties and of others are to be presented by briefs and oral argument. Courts are not subject to lobbying . . ." (emphasis added). But isn't that what a day-of-argument editorial does, liberated from the constraints of the adversary system? Obviously, no Justice has to read The Times, but let us assume that most of them do so. (Justice Thomas has said he does not.) Is it to be further assumed that those who do read it pointedly avoid the editorial page on argument days? This seems unlikely.
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  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.
Happily, we live in a society (mostly) committed to free speech. The Times need have no fear of being prosecuted for contempt because cases on which it chooses to editorialize are still sub judice when the paper arrives on readers' doorsteps or computer screens. But that is not the sole criterion. 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. Posted
by Eugene R. Fidell [link]
Why have newspapers (and blogs?) refrain from comment instead of requiring the judges to take reasonable care not to encounter such material on argument days? Isn't that what juries have to do?
I guess it's a hardship of some kind to avoid reading the Times editorial fairly often, but it doesn't seem to be a huge hardship.
The judges already have read briefs and will hear oral arguments, but op-eds (different papers likely promoting different views, sometimes both sides offered) really will influence them one way or the other in some notable fashion?
If so, it is done in the acceptable way newspapers influence anyone in the promotion of its end of informing the public. To the degree it does influence, unsure why it being on argument day matters too much. It is suggested they offer amicus briefs. Does this mean op-eds beforehand (providing the justice more time to digest it) is questionable too?
I am not under the impression this practice is new. Op-eds about pending matters have a long history. I'm with the first comment: if need be, the justice avoid the op-eds that day. Why deny the general public at the height of interest an analysis?
Mr. Dooley long ago noted that Supreme Court Justices follow the "illiction returns." As for editorials around the time of oral argument, they may be aimed more at getting the attention of some in the public who may not have been aware of the pending case or of the issues than attempting to influence a Justice or two. CJ Roberts' umpire concept is not at play since the Court's decision is not instantaneous, such as calling a ball or a strike, or whether a baserunner is safe or out. Rather, the process is deliberative over many, many months. These newspaper editorials may end up down the road impacting "illiction returns." I just can't imagine a Justice holding a wet finger in the air checking editorial winds in advance of oral argument. Then again, it is possible that a Justice may, because of such an editorial, devise or revise a question or comment for oral argument, but not in such a transparent manner that the media might pick up on it. (Political Scientists may have already studied this.)
BTB*, what about the impact on Justices of public gatherings outside the Court by interest groups on the day of oral argument? These groups do vote.